IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM No.9604 of 2009 &
RSA No.3153 of 2009
Decided on : 28.08.2009
Nawab Khan ... Appellant
versus
Smt. Jaituni & another ...Respondents
CORAM : HON'BLE MR. JUSTICE AJAY TEWARI
Present : Mr. Santosh Sharma, Advocate
for the appellant.
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1.Whether Reporters of local newspapers may be allowed to see
the judgment?
2.To be referred to the reporters or not?
3.Whether the judgment should be reported in the Digest?
AJAY TEWARI, J. (ORAL)
This appeal has been filed against the concurrent
judgments of the Courts below decreeing the suit of the
respondents for permanent injunction restraining the appellant
from interfering in her possession over land measuring 5 kanals
18 marlas on the ground that in a partition between two, the said
land had fallen to the share of the respondent. The whole case of
the appellant is that in fact partition did take place but the
appellant never handed over possession to the respondent. Thus,
at best the respondent could have filed suit for possession but
could not file suit for permanent injunction. The following
questions have been proposed:
i) Whether to get the relief of permanent injunction,
respondent/plaintiff has to prove his possession over the suit
property?
RSA No.3153 of 2009 -2-
ii)Whether the findings of the learned courts below are perverse
in nature especially when the same has been returned without
appreciating the documentary evidence placed on record by the
appellant/defendant No.2?
iii)Whether the judgments of both the courts below is not
sustainable as both the courts below failed to give any cogent
reasoning qua possession of respondent/plaintiff?
It could be seen that proposed questions are
essentially questions of fact. Learned counsel has led large stress
on one finding of the learned Lower Appellate Court in the
following words:
“Moreover, in none of jamabandis after the year
1981, defendant’s possession is mentioned as adverse
rather defendants are shown to be in possession of
half share of plaintiff as gair morusi tenants.”
However, I find that the Lower Appellate Court, on a
conspectus of the whole evidence, has correctly held that the
parties were in possession as per the partition order Ex.P4 and
the appellant had accepted that partition order.
Consequently, I am not persuaded to hold that the
findings of the Courts below are either based on no evidence or is
based on such misreading of evidence so as to render them so
perverse as to be liable to interference under Section 100 of CPC.
Consequently, this appeal and application for stay are
dismissed.
August 28, 2009 (AJAY TEWARI) sonia JUDGE