Dismissed

Ashok Kumar v. Anil Kumar and Anr.

Punjab & Haryana HC3 Sept 2013RSA/519/2013

Case brief

AI extract

What is this about?

The High Court dismissed the appeal where the appellant challenged the setting aside of a permanent injunction. The court held that the appellant failed to prove exclusive possession as the property had been lawfully sold and possession delivered to the respondents via registered sale deed. It noted no substantial question of law existed.

What did the court decide?

The appeal was dismissed; the appellant sought permanent injunction but the prayer was denied as he failed to prove interference with possession.

Ashok Kumar Vs Anil Kumar and Anr. — Partition | Punjab & Haryana HC (2013)

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Manoj Kumar 2013.11.11 10:24 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.519 of 2013 (O&M)

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.519 of 2013 (O&M) Date of Decision: 03.09.2013

Ashok Kumar

....Appellant

Versus

Anil Kumar Sindhi and Anr.

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....Respondents

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CORAM: HON'BLE MR. JUSTICE JASWANT SINGH

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Present: Mr. N.S. Kamboj, Advocate for the appellant.

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JASWANT SINGH, J

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By filing the instant appeal, plaintiff-appellant has prayed for setting aside the impugned judgment & decree dated 26.10.2012 of reversal passed by the learned District Judge, Faridkot whereby appeal filed by defendant No.2-respondent No.1 herein against the judgment and decree dated 30.9.2010 passed by the learned Addl. Civil Judge (Sr. Division), Faridkot partly decreeing the suit of the plaintiff-appellant, has been allowed and the suit dismissed.

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Plaintiff-appellant filed a suit for permanent injunction restraining the defendants-respondents from interfering into the peaceful possession regarding the house in dispute. It transpires that the plaintiff-appellant and defendant-respondent No.2 Bal Krishan are inter-related as both are from one common ancestor namely Ramditta Mal. In 1998, the house in dispute was partitioned by way of a Civil

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RSA No.519 of 2013 (O&M)

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court decree and orange portion came to the share of defendant No.1respondent No.2 whereas red color to the share of the plaintiffappellant but till date, decree has not been executed and the plaintiff is in exclusive possession of the entire house except the shop mentioned above. It is also alleged that defendant No.1-respondent No.2 is residing at New Delhi and defendant No.2-respondent No.1 Anil Kumar is the tenant only in the shop.

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On the other hand, defendant No.1 denied the averments of the plaintiff and submitted that the portion, which is shown in orange color was previously in his possession through his tenant-Anil Kumar defendant No.2, who is still in possession of the shop and the remaining orange portion was in possession of one Ram Singh as tenant, who subsequently vacated and handed over the possession to defendant No.1 by way of writing dated 10.8.2002 and thereafter, he sold the portion shown in orange color to Mamta Rani-wife of Anil Kumar-defendant No.2 vide sale deed dated 4.9.2006 and delivered the possession of the same at the time of registration of the sale deed.

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Defendant No.2 filed separate written statement and supported the assertion of defendant No.1.

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Learned trial Court partly decreed the suit of the plaintiff to the effect that the defendants are restrained from illegally and forcibly interfering with the portion mentioned in decree sheet dated 30.9.2010 but in an appeal filed by Anil Kumar-defendant No.2/respondent No.1 herein, learned first Appellate Court set aside the judgment and decree

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RSA No.519 of 2013 (O&M)

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of the learned trial Court while accepting the appeal on account of the fact that Mamta wife of Anil Kumar/defendant No.2-respondent No.1 had purchased the suit property vide registered sale deed dated 4.9.2006.

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Heard learned counsel for the appellant and perused the paper book with his able assistance.

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There is no dispute that on an earlier occasion, a decree was passed between the plaintiff and defendant No.1 regarding the partition of house in dispute. It is also not in dispute that a Local Commissioner was appointed at the time of final decree and he has submitted a report (Ex.P.1) wherein it is mentioned that portion shown in orange color is already in possession of said Bal Krishan-defendant No.1 and there is no evidence by the plaintiff-appellant that after that how the possession of Bal Krishan has been disturbed and he came into exclusive possession of the house in dispute as claimed by him.

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Defendants-respondents have successfully proved that the suit property was sold to Mamta Rani wife of Anil Kumar by way of registered sale deed dated 4.9.2006 and the possession was handed over. Plaintiff-appellant while appearing as PW1 has admitted in his cross examination that in the earlier litigation, at the time of final decree, local Commissioner was appointed and he submitted his report (Ex.P.1) as per the mode of partition and thus, learned first Appellate Court has rightly set aside the judgment and decree passed by the learned trial Court.

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RSA No.519 of 2013 (O&M)

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#4#

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In the opinion of this Court, the plaintiff-appellant has

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failed to prove that he is in exclusive possession of the suit property, thus, he is not entitled for any injunction as prayed for.

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No substantial question of law is involved in the present

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appeal for adjudication under Section 100 CPC.

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Dismissed. September 03,2013 ( JASWANT SINGH ) manoj JUDGE

Ashok Kumar v. Anil Kumar and Anr.

Case brief

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Ashok Kumar v. Anil Kumar and Anr.

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