JUDGMENT

Alok Jain, J.

The present appeal arises out of a suit filed by the appellants-plaintiffs for permanent injunction restraining the defendants from illegally and forcibly interfering in the peaceful possession of the premises. Another suit by the appellants-plaintiffs for possession by way of partition of 2/3rd share of the house was also consolidated and the defendant had also raised the counter claim. The learned trial Court vide its judgment and decree dated 15.04.2005 dismissed the suit of the appellants-plaintiffs and returned a finding that the appellants-plaintiffs is not entitled to permanent injunction as prayed for and the counter claim raised by the defendant was decreed and the defendant was held to be entitled to the possession of the site.

2. The appeal filed by the appellants-plaintiffs also came to be dismissed by ADJ, Hoshiarpur on 13.09.20211 and as the appellants-plaintiffs had failed to prove their case.

3. Aggrieved by the above, present second appeal came to be filed.

4. The brief facts of the case as narrated by the counsel for the appellants are that plaintiffs had filed a suit for possession by way of partition of 2/3rd share of the house in dispute, situated in village Khanoor Tehsil and Distt. Hoshiarpur. It was alleged that the plaintiffs and the defendant are real brothers. The plaintiffs had two other brothers namely Piara Singh and Kundan Singh. The father of the parties had divided his property in his life time. The house in dispute had fallen to the share of Kundan Singh and electric meter had been got installed by Kundan Singh in his own name and he had been making payment of the electricity charges during his life time. Kundan Singh was the exclusive owner of the house in question and he was in possession of the same. Kundan Singh, the real brother of the parties, had died on 20.08.2000, issueless and wifeless and as such it was alleged that the parties are entitled to succeed his property, in equal share. After the death of Kundan Singh, the defendant had entered into possession of house in dispute. The plaintiffs requested the defendant to give their share in the house, but he refused and hence the present suit.

5. Notice of this suit was also given to defendant, who appeared through his counsel and filed written statement taking preliminary objections that the site plan filed with the plaint is incorrect, that the plaintiffs are not in possession over any part of suit property; that the suit is liable to be stayed under section 10 of CPC in view of pendency of another suit filed by Harbhajan Singh for permanent injunction and in view of counter claim filed by the answering defendant for possession, the present suit is not maintainable and the plaintiffs are estopped by their own act and conduct from filing the present suit. On merits, it was alleged that it is wrong that the father of the parties divided any property during his life time and that the property in dispute fell in the share of Kundan Singh. It was further alleged that Kundan Singh came to the village after retirement from service and at that time, father of the parties got an electric meter installed in the house. Since, Kundan Singh used to go out for getting everything done, so the connection was taken in his name merely as family head and not as a matter of any right in the property. The payment of bills and other dues were being made by the answering defendant even during the life time of Kundan Singh. The property was in the name of father of the parties and after his death, the said property was inherited by answering defendant by virtue of will dated 19.08.1977. It w