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2023 DIGILAW 193 (PNJ)

Jitender Kumar v. Maan Singh

2023-01-13

ALKA SARIN

body2023
JUDGMENT Alka Sarin, J. - The present regular second appeal has been preferred by the plaintiff-appellant against the concurrent findings of both the Courts below dismissing his suit for permanent injunction. 2. The brief facts relevant to the present lis are that the plaintiffappellant filed a suit for permanent injunction seeking to restrain the defendantrespondents from raising any construction over any specific portion of the suit property fully described in para No.1 of the plaint and also from alienating any specific portion of the suit property on which it was alleged that the parties are co-sharers and the plaintiff-appellant has 2/4 share in the same. It was further averred that the suit property was meant for commercial purposes and the same is abutting to the Nizampur Road and the defendant-respondents were adamant to raise construction over the portion of the suit property abutting the Nizampur Road without getting the same partitioned. Defendant-respondent Nos.1, 2 and 5 denied that the suit property was joint property and it was stated that the property was partitioned by the sons of Ram Bhagat, namely, Deen Dayal, Kishori Lal, Raghbir Singh and Brij Lal in the year 1991. It was further averred that during partition the portion of the suit property shown in red, yellow, blue and orange colours respectively in the site plan had fallen to the share of Raghubir Singh, Deen Dayal, Kishori Lal and Brij Lal and the property shown green in the site plan was kept joint for the common purposes. It was further averred that subsequently the sons of Deen Dayal also partitioned the land which had fallen in their share on 30.05.2002 and that the property shown by letters BDEF had fallen to the share of Gajender and Tejender; property shown by letters GHLK shown with yellow colour had fallen to the share of Tejender; property shown with letters JLIK had fallen to the share of Maan Singh; property shown by letters MNOQ had fallen to the share of Gajender while the property shown with letters PORQ had fallen to the share of the plaintiff-appellant i.e. Jitender Kumar. 3. On the basis of the pleadings of the parties the following issues were framed : 1. 3. On the basis of the pleadings of the parties the following issues were framed : 1. Whether defendants be restrained not to sell, gift, transfer, lease or to raise any construction over the suit land detailed and described in the head note of the plaint without getting the same partitioned by metes and bounds as alleged in the plaint ? OPP 2. Whether the present suit is not maintainable in the present form ? OPD 3. Whether the plaintiff has no cause of action and locus-standi to file the present suit ? OPD 4. Whether the present suit is time barred ? OPD 5. Relief. 4. The Trial Court vide impugned judgment and decree dated 26.11.2013 dismissed the suit of the plaintiff-appellant. Aggrieved by the said judgment and decree an appeal was preferred by the plaintiff-appellant which appeal was also dismissed by judgment and decree dated 30.01.2016 passed by the lower Appellate Court. Hence, the present regular second appeal. 5. Learned counsel for the plaintiff-appellant would contend that the partition has not been reflected in the jamabandies and hence once the partition has not been effected, permitting the co-sharers to raise construction to the detriment of the plaintiff-appellant would harm the interest of the plaintiffappellant and hence the suit ought to have been decreed. Heard. 6. In the present case the claim of the plaintiff-appellant was that the suit property was jointly owned and possessed by the parties. To the contrary, the defendants-respondents had claimed that same had been mutually partitioned between the parties and the parties were all in possession of their respective shares. For reasons best known to the plaintiff-appellant, he did not produce on the record the latest jamabandies at the time of filing of the suit. The jamabandi produced by him (Ex.P1) is for the year 1989-1990 while the suit was filed by him on 19.01.2007. A plaintiff has to stand on their own legs, he has to prove his own case by adducing oral and/or documentary evidence and prove the same. The plaintiff-appellant further in his cross-examination admitted that walls had been constructed over separate portions of the suit property and that the same were constructed in the year 2002. Hence, both the Courts below rightly came to the conclusion that all the parties were in their respective exclusive shares by way of mutual settlement. The plaintiff-appellant further in his cross-examination admitted that walls had been constructed over separate portions of the suit property and that the same were constructed in the year 2002. Hence, both the Courts below rightly came to the conclusion that all the parties were in their respective exclusive shares by way of mutual settlement. Further, even a co-sharer cannot be injuncted from selling his share of the property even though the property is sold by way of specific khasra numbers and the same would tantamount to alienation only of a share by the co-sharer. Learned counsel for the plaintiff-appellant has not been able to point out to any evidence which would show that the construction, if any, being raised by the defendant-respondents was to his detriment. 7. In view of the above, I do not find any merit in the present regular second appeal. No question of law much less any substantial question of law arises for determination by this Court. The present appeal being devoid of any merit is accordingly dismissed. Pending applications, if any, also stand disposed off. 8. Dismissed.