RSA No. 1293 of 2009(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM Nos. 3793-C and 3794-C of 2009 and
RSA No. 1293 of 2009(O&M)
Date of Decision: August 19, 2009
Sunhera ...... Appellant
Versus
Vijay and others ...... Respondents
Coram: Hon'ble Mr. Justice Ajay Tewari
Present: Mr. M.S.Tewatia, Advocate
for the appellant.
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1. Whether Reporters of local papers 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.
CM Nos. 3793-C and 3794-C of 2009
For the reasons recorded in the application, the delay of 78 days
in filing and of 116 days in refiling the appeal is condoned.
CMs stand disposed of.
RSA No. 1293 of 2009
This appeal has been filed against the judgment of the learned
lower Appellate Court reversing that of the trial Court and thereby
decreeing the suit of the respondents for possession.
The learned lower Appellate Court held that the respondent-
plaintiff in any case had established that he was co-sharer in the property in
RSA No. 1293 of 2009(O&M) 2
dispute and any suit filed by him against the stranger would enure to the
benefit of all the co-sharers. Learned lower Appellate Court further held
that the appellant not having been able to establish proof of her title by way
of adverse possession, the suit had to be decreed.
The following questions have been proposed:-
i) Whether the suit itself deserves to be dismissed on the
ground of non joinder of all co-sharers?
ii) Whether the suit or possession is not time barred specifically
when for the last more than 100 years respondent No.1 is not
in the possession?
iii)Whether the onus to prove ownership was not at plaintiff by
leading cogent evidence?
iv)Whether the finding of First Appellate Court is not perverse?
As regards question No. (i), the learned lower Appellate Court
has rightly held that any co-sharer can maintain a suit against a stranger
which would enure to the benefit of all the co-sharers. With regard to
question No. (ii) it cannot be held that suit for possession based on title is
barred by time. Questions No. (iii) and (iv) are pure questions of fact.
Learned counsel has not been able to persuade me that the findings thereon
are either based on no evidence or on such misreading of the evidence to as
to render them perverse.
Consequently this appeal is dismissed. No costs.
Since the main case has been decided, all the pending Civil
Misc. Applications are disposed of.
(AJAY TEWARI)
JUDGE
August 19, 2009
sunita