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2006 DIGILAW 1674 (PNJ)

Jiwan Ram v. Kanta

2006-04-25

SURYA KANT

body2006
Judgment Surya Kant, J. 1. This Regular Second Appeal is filed by the plaintiff, whose suit has been dismissed by both the courts. The appellants suit was for declaration to the effect that he is in exclusive possession of the suit land measuring 31 kanals 7 marlas, fully detailed in the head-note of the plaint. 2. The aforesaid declaration was sought by him on the ground that the land in dispute was previously owned by Kanhiya, who executed a will in the appellants favour on 25.9.1975. Kanhiya was the real brother of the appellants father. The appellant, however, has been non-suited by the courts below on the ground that though the above stated will was executed by Kanhiya bequeathing the land in favour of the appellant, however, later on, he suffered a consent decree in the civil court on 6.11.1993 passed in civil suit No.776 of 1993, titled as "ram Kumar V/s. Kanhaya" in terms whereof, the land in dispute was equally distributed amongst the appellant and his brothers inasmuch as 1/4th share was given by Kanhiya to the sons of the appellant whereas the remaining shares to respondents No.1,2 and 3, who are none else than the brothers of the appellant. 3. This being a concurrent finding of fact returned by both the courts, hardly any question of law, much less a substantial question of law, arises for consideration of this Court. 4. Learned Counsel for the appellant, however, further contends that it stands established on record that the appellant is in exclusive possession of the land measuring 12 marlas which is a part and parcel of the land in dispute and he has made several improvements on the said piece of land. It is, thus, contended that the appellant is entitled at least for the lesser relief of permanent injunction against his forcible dispossession from the said piece of land at the hands of the respondents. 5. I am afraid, no injunction can be granted in favour of the appellant against his own co-sharers. The plea aforesaid, if at all, shall be available to the appellant in the partition proceedings. 6. With these observations, the appeal is dismissed.