IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

245 RSA-1835-2016(O&M)

Date of decision: 02.12.2025 Rajender @ Raja ...Appellant(s)

Vs.

Tek Chand & Others ...Respondent(s)

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

Mr. Shiv Kumar, Advocate for the respondents No.1 and 2.

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NIDHI GUPTA, J.

The defendant No.1 is in Second Appeal against the concurrent judgments and decrees of the learned Courts below whereby suit filed by the plaintiffs/respondents No.1 and 2 herein, for permanent and mandatory injunction, has been decreed by both the Courts below.

2. It was the pleaded case of the plaintiffs in the plaint that the suit land was previously joint between co-sharers Uday Singh, Ram Lal and Ranjeet; which was partitioned by metes and bounds through competent Revenue Court; whereafter the plaintiffs had purchased Pattedari Rights for 99 years in their respective portions of the suit land; plaintiff No.1 vide Sale Deed No.6342 dated 17.01.2005; and plaintiff No.2 vide Sale Deed No.4906 dated 26.09.2005. Accordingly, the plaintiffs claimed to be exclusive owners in actual physical possession of the specific Khasra Numbers after partition by metes and bounds between the co-sharers. However, defendants were encroaching upon their land and were interfering in their peaceful possession. As such, a decree of permanent injunction was sought restraining the defendants from encroaching upon any portion of the suit land and interfering into the peaceful possession of the plaintiffs into the suit land. The plaintiffs further sought a decree for mandatory injunction directing the defendants to remove the illegal construction raised during the pendency of the suit. With these pleadings, present suit was filed on 27.01.2006.

3. To the contrary, it was the case set up by the defendants in their written statement, that they had purchased land measuring 2 kanals 6 marlas i.e 48/722th share vide sale deed no. 3584 dated 5.1.1994 from Uday Singh/co-sharer in the suit property. On the basis of said sale deed, the mutation no. 3234 was sanctioned in their favour. It was alleged that immediately after purchase of property, the seller had delivered possession towards the Eastern side of Rect No.41 Killa No.21. It was alleged that defendant being absolute owner in possession to the extent of his 1/3^rd share constructed boundary wall and a room and is in possession thereof since

1994. Accordingly, dismissal of the suit was prayed for.

4. Upon appraisal of pleadings and oral & documentary evidence adduced by the parties, the learned Civil Judge (Junior Division), Faridabad had decreed the suit of the plaintiffs vide judgment and decree dated 24.12.2010. The appeal filed by the defendant No.1 was dismissed by the learned Additional District Judge, Faridabad vide judgment and decree dated

17.11.2015. Hence, present Second Appeal by the defendant no.1.

5. It is inter alia submitted by learned counsel for the appellant that the suit for permanent injunction is not maintainable since the plaintiffs were never in possession. It is contended that till date the appellant is in possession. The appellant had even constructed room, boundary wall and also a portion for his buffaloes.

6. It is further contended that suit is not maintainable against co- sharer as the partition order dated 1999 does not depict separate holding of respondents’ predecessor Ram Lal. Rather it is recorded in Para 13 itself that Khewat of Ram Lal and Udai Singh is joint. It is submitted that the present is a case where there is misreading of partition order and reliance is wrongly put on Dakhil Kharij which cannot be instrument of Partition. Mere recording of Dakhil Kharij does not confer exclusive right; in terms of Full Bench judgment of this Hon’ble Court in case titled as ‘Ram Chander v. Bhim Singh’, (P&H)(FB) : Law Finder Doc ID # 144507, decided on 23.05.2008, which says that specific possession even if it is recorded in the Revenue Record c