IN THE HIGH Court OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 04.03.2025 Karam Singh ...Appellant(s)

Vs.

Ajmer Singh ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. S.P.Soi, and Mr. Sahil Soi, Advocates for the appellant.

***

NIDHI GUPTA, J.

The present second appeal has been filed by the plaintiff against the concurrent judgments and decrees of the learned Courts below, whereby the suit of the appellant/plaintiff for declaration that the plaintiff is owner in exclusive possession of the suit house; and for mandatory injunction directing the defendant to remove his old articles;

has been dismissed by both the Courts below.

2. The parties shall hereinafter be referred to as per their status before the learned trial Court i.e. the appellant is the ‘plaintiff’; and the respondent is the ‘defendant’.

3. Brief facts of the case are that the plaintiff had filed the present suit claiming to be the owner in possession of the suit house. It was averred that the plaintiff had granted permission to the defendant who is brother of the plaintiff to store some articles like two iron petties, beds, scooter etc. in one of the rooms of the suit house. Subsequently, the plaintiff had asked the defendant to remove his stored items as they were kept only with temporary permission. However, the defendant refused to comply with the said request of the plaintiff and failed to remove articles despite his repeated requests. Previously, a partition suit had been filed by the defendant claiming therein that the suit house was joint property. However the suit of the defendant was dismissed on 21.07.2010. Even the appeal filed by the defendant against the said judgment and decree dated 21.07.2010 was dismissed on 01.12.2011. Hence, the present suit has been filed by the plaintiff to the extent that he is the exclusive owner of the suit house.

4. Upon notice, defendant appeared and filed written statement resisting the suit on preliminary objections of maintainability, res-judicata and Section 10 CPC. On merits, defendant stated in his written statement that suit house was jointly owned and possessed by the plaintiff and defendant along with other co-sharers; suit house has not been partitioned and therefore, every co-sharer has a right to enjoy the same; all the co- sharers were residing in their respective portion since the time when their father was alive. It was submitted that as per the site plan attached by the plaintiff himself with the plaint, the defendant and other co-sharers are shown to be living in the suit house. Clearly therefore, it has been admitted by the plaintiff that other co-sharers were also in possession of the disputed portion. It was further stated that the suit house was ancestral property. Therefore, nobody can claim exclusive right upon the same; and that the plaintiff wanted to grab the suit house to harass the defendant. Accordingly, prayer for dismissal of the suit has been made.

5. In replication, averments made in the plaint were reiterated and those made in the written statement were denied.

6. On the basis of the pleadings of the parties, following issues were framed vide order dated 23.04.2013:-

1. Whether the plaitiff is entitled for declaration as prayed for? OPP

2. Whether the plaintiff is entitled for mandatory injunction as prayed for? OPP

3. Whether the suit is not maintainable?OPD

4. Whether the plaintiff has not come to the court with clean hands?OPD

5. Relief.

7. Upon appraisal of the pleadings and the evidence led by the parties, the ld. trial Court decided issues No. 1 and 2 in favour of the defendant and against the plaintiff; issues No.3 and 4 in favour of the plaintiff and against the defendant; and accordingly, vide judgment and decree dated 18.05.2015, the suit of the plaintiff was dismissed. The appeal filed by the plaintiff was dismissed with costs by the learned Additional District Judge, Chandigarh vide judgment and decree dated 15.02.2019 thereby affirming the findings of the learned