Sandeep & Others vs Sunil Kumar & Others on 7 October, 2009

[Cites 0, Cited by 1]

Punjab-Haryana High Court

Sandeep & Others vs Sunil Kumar & Others on 7 October, 2009

Bench: Ajay Tewari

RSA No.1621 of 2009                               -1-



        IN THE PUNJAB AND HARYANA HIGH COURT
                    AT CHANDIGARH

                                         RSA No.1621 of 2009
                                         Decided on:07.10.2009


Sandeep & others                                  ..... Appellants

                              versus

Sunil Kumar & others                            ..... Respondents

CORAM: HON'BLE MR. JUSTICE AJAY TEWARI

Present:    Mr. Ashwani Bakshi, Advocate
            for the appellants.

                               ****

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 appellants from interfering in their exclusive possession over certain land comprising in Khewat No.131.

Learned counsel for the appellants has argued that the respondents had set up their case on the basis of a partition as well as on Will but were not able to satisfactorily prove either the partition or the Will. The following questions have been proposed:

i) Whether the finding recorded by the ld. Courts below that the land comprising in Khewat No.131 RSA No.1621 of 2009 -2- was partitioned and thus the respondents-plaintiffs were in exclusive possession of the suit land is perverse and, therefore, liable to be set aside?

ii)Whether the ld. Courts below are legally justified in holding that the alleged Will was proved despite the fact that neither any attesting witness or scribe nor any official from the office of Sub Registrar was examined by the respondents-plaintiffs before the Trial Court to prove the same?

iii)Whether the site plan produced by the respondents-

plaintiffs before the Trial Court can be said to be proved and taken into consideration without examining the person who prepared the same?

iv)Whether a restrain order can be passed against a co-sharer in a suit for permanent injunction? It would be seen that questions No.(i) & (ii) deal with the questions of partition and the Will. In my opinion, the present is a pure suit of injunction wherein title was not to be established. Consequently, if the appellants assert either that no partition took place or that no Will was executed in favour of the respondents, they are free to do so in a proper title suit and any findings, which may be recorded in the present suit would have no effect. Questions No.(iii) is a pure question 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 evidence so as to render them perverse. As regards question No. RSA No.1621 of 2009 -3-

(iv), there is ample judicial authority to support the view that where one co-owner has been able to prove established possession over a certain portion of property, an injunction can be issued.

Consequently, this appeal is dismissed with the above said observations.

October 07, 2009                            (AJAY TEWARI)
sonia                                           JUDGE

Unlock Advanced Research with PRISMAI

Punjab-Haryana High Court