R.S.A. No. 920 of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A. No. 920 of 2003
Date of Decision: 30.10.2008
Piara Singh and others
...Appellants.
Versus
Bhupinder Singh and others
...Respondents.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
PRESENT: Mr. Vikas Mohan Gupta, Advocate for the appellants.
None for the respondents.
AJAY KUMAR MITTAL, J.
This regular second appeal filed by defendants No.1 to 3 is
directed against the judgment and decree dated 10.10.2002 passed by
the first appellate court whereby that of the trial court dated 13.5.1999
decreeing the suit of the plaintiff was modified to the extent that the
plaintiff was not entitled to a decree for injunction against defendant
No.1 as he was not found in possession of the suit property.
Sans unessentials, the facts of the case are that the plaintiff
was the owner in possession of the property marked by letters A B C D
and joint owner of property marked by letters A B E F in the site plan
attached with the plaint and fully described in the head note of the
plaint. It was pleaded that these properties were originally allotted to
R.S.A. No. 920 of 2003 -2-
Munsha Singh (father of the plaintiff-Mohinder Singh and defendants
No.1, 4 and 5) at the time of partition of the country in lieu of the
property left by him at Pakistan and the same was the property of
custodian. It was pleaded that after the death of said Munsha Singh,
the original plaintiff, defendant No.1 and proforma defendants No.4 and
5 had effected a family partition in which they were given 1/4th share
each in the suit property and they constructed their respective houses.
It was further pleaded that the site marked as A B E F was kept open for
the common use of the plaintiff as well as defendants No.1, 4 and 5.
According to the plaintiff, he thereafter shifted to Nangal for business
and taking benefit of his absence defendants No.1 to 3 threatened to
take possession of the suit property marked as A B C D and A B E F
without any legal right. The plaintiff requested defendants No.1 to 3 not
to do the illegal act but they flatly refused to accede their request and
that gave rise to the filing of the suit for declaration and permanent
injunction. . During the pendency of the suit, Mohinder Singh died and
was succeeded by son, widow and two daughters who were impleaded
as plaintiffs in his place.
To controvert the suit of the plaintiff, defendants No.1 to 4
filed a joint written statement raising various preliminary objections.
Besides admitting the relationship between the parties and the family
partition, it was pleaded that before leaving for Nangal, the portion
which fell to the share of the original plaintiff-Mohinder Singh in the
family settlement was given to defendant No.1 on receipt of an amount
of Rs.20,000/- as sale consideration and, therefore, defendant No.1 had
been in possession as owner of the said portion. It was further pleaded
R.S.A. No. 920 of 2003 -3-
that the plaintiff had got no right or title in the suit property as he had
already transferred the same in favour of defendant No.1. The other
averments made in the plaint were denied and a prayer for dismissal of
the suit was made.
Defendant No.5 filed a separate written statement admitting
the claim of the plaintiff.
From the pleadings of the parties, the trial court framed
various issues. On appreciation of the evidence led by the parties, the
trial court came to the conclusion that the plaintiff had successfully
proved that he was owner in possession of the suit property marked as
A B C D and that the portion marked as A B E F was left for the
common use by the co-sharers and the plaintiff was a co-sharer in the
said portion. It was also held by the trial court that the defendants had
failed to prove the factum of transfer of his share by the plaintiff in
favour of defendant No.1. Accordingly, the trial court vide judgment and
decree dated 13.5.1999 decreed the suit of the plaintiff. Feeling
aggrieved, defendants No.1 to 4 approached the lower appellate court
which vide judgment and decree dated 10.10.2002 relying upon an
agreement Mark “A” between the plaintiff and defendant No.1 partly
modified the judgment and decree of the trial court to the extent that the
plaintiff was not entitled to the grant of injunction against defendant
No.1.
I have heard the learned counsel for the appellants and
have perused the impugned judgments with his assistance.
Learned counsel for the appellants has made an attempt to
reappreciate the evidence led by the parties before the courts below
R.S.A. No. 920 of 2003 -4-
which is not permissible under Section 100 of the Code of Civil
Procedure. The courts below had recorded a finding of fact that the
plaintiff was owner in possession of the suit property marked as A B C
D and joint owner of the portion marked as A B E F and defendant No.1
failed to prove that he had become owner of portion marked as A B C D
on payment of consideration amount to the plaintiff. No misreading of
the evidence by the courts below has been shown by the learned
counsel for the appellants warranting interference by this Court in the
regular second appeal.
No question of law, much less a substantial question of law
arises in this appeal for consideration of this Court.
In view of the above, there is no merit in this appeal and
the same is hereby dismissed. There shall, however, be no order as to
costs.
October 30, 2008 (AJAY KUMAR MITTAL) gbs JUDGE