RSA No. 4068 of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 4068 of 2002
Decided on :03-03-2009
Har Sukh
....Appellant
VERSUS
Lakshmi Chand
....Respondent
CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER
Present:- Mr. Amit Jain, Advocate for the appellant
Mr. Sanjay Vij, Advocate for the respondent
MAHESH GROVER, J
This is plaintiff’s second appeal directed against the judgements
of the learned Trial Court dated 13.1.2001 and that of the First Appellate
Court dated 28.8.2002.
The plaintiff-appellant filed a suit for permanent injunction
seeking to restrain the respondent from raising any construction on the
disputed property by alleging that the land is joint between all the co-sharers
which has not been partitioned and that the respondent cannot raise any
construction to the detriment of other co-sharers.
The respondent who was on notice denied all the allegations
and pleaded that there was oral partition between the parties and the land
had been purchased from Gopi, who was the original vendor and who in
turn was in the settled possession of his property.
The parties went to trial on the following issues:-
1. Whether the plaintiff is co-owner of the suit property and the
RSA No. 4068 of 2002 2
suit land has not been partitioned so far ? OPP.
1(A) If issue no.1 is proved, whether the plaintiff is entitled to
the relief of permanent injunction? OPP.
2. Whether the suit is not maintainable in the present
form?OPD.
3. Whether the plaintiff is estopped from filing the present suit
by his own act and conduct? OPD.
4. Whether the suit is bad on account of non-joining of
necessary parties?OPD.
5. Relief.
On appraisal of the evidence before them, both the Courts came
to the conclusion that the respondent was in settled possession of his share
which he has purchased from Gopi and dismissed the suit of the plaintiff-
appellant.
In Regular Second Appeal, learned counsel for the appellant
has based his contentions broadly on the averments that he made in the
plaint to contend that the respondent being a co-sharer cannot raise any
construction to his detriment.
On the other hand, learned counsel for the respondent has
referred to the statement of the plaintiff himself recorded during the course
of proceedings wherein he has admitted the factum of construction having
been raised before the filing of the suit and also referred to his admission
that Gopi the vendor from whom the interest was derived by the respondent
was in settled possession of land which he has sold and that all co-sharers
are cultivating their exclusive shares.
On the strength of this, learned counsel for the respondent
RSA No. 4068 of 2002 3
contended that once settled possession is proved then the respondent was
very well within his rights to raise construction and it was raised prior to the
filing of the suit. Reliance was placed on decisions of this Court in cases
titled as ‘Bachan Singh versus Swaran Singh’ 2000(3) CCC 2 (P&H) and
‘M/s A.G.Enterprises versus State of Punjab and others’ 2007(4) PLR 522.
I have heard learned counsel for the parties and have perused
the impugned judgments.
In this case, testimony of PW2, the plaintiff-appellant is
relevant who himself has candidly admitted the possession of the
respondent to be exclusive. Not only this, he has admitted that the
possession of vendor Gopi was exclusive and was in lieu of the land which
was given by Gopi to him and subsequently sold to the respondent. He
admitted that he was cultivating some other land exclusively implying
thereby a partition based on the conduct of the parties and reflecting
exclusive possession of each of the parties.
In this view of the matter, the contention of the learned counsel
for the appellant necessarily has to be repelled and it is to be held that the
findings of both the Courts below can neither be termed to be perverse nor
erroneous so as to warrant any interference in regular second appeal. No
substantial question of law has been shown to have arisen in the present
appeal and the same being devoid of any merit is hereby dismissed.
March 3, 2009 (Mahesh Grover) rekha Judge