Dismissed

Chander Kanta v. Gurmit Kaur

Punjab & Haryana HC26 Apr 2010RSA/4274/2008

Case brief

AI extract

What is this about?

In a Regular Second Appeal regarding a suit for permanent injunction, the High Court dismissed the appeal. The appellant failed to substantiate her claim of title and possession as she did not produce cogent evidence. A new plea regarding possession through an attorney was rejected as not pleaded in the lower courts. The appeal was dismissed for lack of merit.

What did the court decide?

The second appeal and the stay application were dismissed. The judgments and decrees of the trial court and first appellate court were upheld.

Chander Kanta Vs Gurmit Kaur — Property and Title | Punjab & Haryana HC (2010)

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R.S.A. No.4274 of 2008 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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R.S.A. No.4274 of 2008 (O&M) Decided on : 26-04-2010

Chander Kanta

.... Appellant

VERSUS

Gurmit Kaur

.... Respondent

CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER .

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Present:Mr. Vikas Bahl, Advocate, for the appellant.

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MAHESH GROVER, J (Oral).

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This Regular Second Appeal by the plaintiff is directed against the judgments and decrees dated 8.6.2007 and 14.5.2008 passed respectively by the Civil Judge (Junior Division), Nawanshahar (referred to hereinafter as the trial Court') and the Additional District Judge, Nawanshahar (described as the first appellate Court'), whereby the suit and the appeal filed by the plaintiff/appellant have been dismissed.

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The appellant pleads that she is owner in possession of the suit property, which was originally owned by Joginder Ram her husband and after his death, she inherited the suit property and was in continuous possession of the same.

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Defendant No.1/respondent denied the possession and ownership of the appellant. She pleaded that the property belongs to Bhajna Ram S/o Labhu Ram, her father and she had inherited

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R.S.A. No.4274 of 2008 (O&M)

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the same from him on the basis of a Will dated 25.11.1981.

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Both the Courts below dismissed the suit and the appeal of the plaintiff/appellant.

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Learned counsel for the appellant has contended that number of issues were framed, which included the issue of title as well. But the Courts below have failed to decide these issues and rather returned the findings without deciding the title. It has been contended by learned counsel for the appellant that she is in possession of the suit property through her attorney, who is residing in the same.

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I have heard learned counsel for the appellant and have perused the impugned judgments as also the material on record.

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The appellant has now contended that she is in possession of the suit property through her attorney, who is residing in the same, but in the plaint no such plea was taken. Rather a specific plea has been taken that the property belongs to Joginder Ram and that she is in possession of the same. The suit is merely for permanent injunction. Once the appellant fails to prove her possession, then obviously, there is no question of injunction being granted in her favour. The fact pleaded before this Court that attorney of the appellant is in possession and therefore, the appellant should have been deemed to be in continuous possession of the property, is meaningless in the absence of pleadings to that effect. The finding regarding possession, which is a question of fact, has been returned against the appellant, which cannot be interfered with in a Regular Second Appeal. The appellant has also pleaded

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R.S.A. No.4274 of 2008 (O&M)

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that number of issues, such as title, were not decided.

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The appellant came on the basis of title, hence it was her duty to prove the case in the affirmative by producing cogent evidence on record. If the record is to be seen, only the sale certificates on the basis of which title was set up, were produced and which were merely marked and not proved in accordance with law. Thus, looking from any angle, the appellant fails to substantiate her case by producing any evidence on record.

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Therefore, this appeal is totally devoid of any merit and is dismissed.

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Consequently, the stay application is also dismissed.

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26^th April, 2010. (MAHESH GROVER) Monika JUDGE

Chander Kanta v. Gurmit Kaur

Case brief

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Chander Kanta v. Gurmit Kaur

Case brief

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