IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 02.09.2025 Aamin Khan ...Appellant(s)

Vs.

Mohammad Israil and others ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Munfaid Khan, Advocate for the appellant.

Mr. Sukhandeep Singh, Advocate for Mr. Lokesh Sinhal, Advocate for the respondents.

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NIDHI GUPTA, J. CM-2807-C-2018 Prayer in this application filed under Section 5 of Limitation Act is for condonation of delay of 37 days in filing the accompanying appeal.

2. For the reasons mentioned in the application which is duly supported by an affidavit of the applicant/appellant the same is allowed and delay of 37 days in filing the appeal is condoned.

RSA-1141-2018 (O&M)

Present Regular Second Appeal has been filed by the plaintiff against the judgment of reversal dated 09.10.2017 passed by learned Additional District Judge, Mewat; whereby Appeal filed by the respondent/defendants has been accepted and suit of the plaintiff for permanent injunction has been dismissed with costs.

2. It is submitted by learned counsel for the plaintiff/appellant that the learned first Appellate Court was in error in setting aside the well reasoned judgment of the learned trial Court on conjectures and surmises. It is submitted that learned trial Court had given a categoric finding that the plaintiff is in possession of the suit property. The learned trial Court has categorically held “That if the defendants are permitted to raise further construction over the suit property then it would amount to ouster of the plaintiff from the suit property because it is a matter of common knowledge that the property situated near the road is always more valuable than the one situated away from the road. If the defendants succeed in raising further construction over the suit property then it would amount to ouster of the plaintiff from the valuable portion of land and would adversely affect their rights.” Yet, the First Appellate Court has dismissed suit of the plaintiff.

3. It is further submitted that the Ld. First Appellate Court while passing the impugned judgment and decree has failed to consider that a co-sharer in exclusive possession of a part of joint land cannot raise construction on the land as every co-sharer is a joint owner of every inch of the whole land; and if the respondents/ defendants are not restrained from changing the nature of joint property by raising construction over it, then it will amount to give rise to the multiplicity of the litigations. As such impugned judgment and decree dated 09.10.2017 passed by Ld. First Appellant Court is not sustainable in eyes of law and liable to be set aside.

4. It is accordingly prayed that the present Regular Second Appeal be allowed; and the impugned judgment and decree be set aside.

5. Per contra, learned counsel for the respondent/defendants opposes submissions made on behalf of the appellant and submits that admittedly, the defendants have raised construction over the suit property. However, even the plaintiff had raised construction over the suit property. It is submitted that in actual fact, suit property is not joint in nature and the same has been mutually partitioned between the parties about 30 years back; and it is only after the partition that the defendants had raised construction over the suit property coming in their share.

Accordingly, dismissal of the present Second Appeal is prayed for.

6. No other argument is raised on behalf of the parties. I have heard learned counsel and perused the case file in detail. I find no merit in the submissions made on behalf of the appellant/plaintiff.

7. Although, it is the contention of the defendants that the property was partitioned 30 years back, however admittedly, the same is not reflected in the revenue record. On the contrary, as per the Jamabandis Ex.P1 and Ex.P2, produced by the plaintiff, suit property is shown to be joint in nature. Notwithstanding the above, it is to be taken note of that the plaintiff in his