RSA-4758-2019 (O&M) -:1:- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-4758-2019 (O&M) Reserved on :-04.09.2025 Pronounced on :-16.09.2025 Ram Kishan (Deceased) Through his LRs and Others … Appellants Versus Radhey Shyam and Others ... Respondents **** CORAM: HON'BLE MR. JUSTICE VIRINDER AGGARWAL Argued by :- Mr. R.N. Lohan, Advocate for the appellants. Mr. Munish Kumar Garg, Advocate for the respondents. **** VIRINDER AGGARWAL , J . 1. The appellants-defendants have filed the present Regular Second Appeal (‘RSA’ for short), challenging the concurrent findings of both the Courts below, whereby the suit of the respondents–plaintiffs for permanent injunction was decreed. The plaintiffs sought to restrain the appellants– defendants from making any encroachment in the street shown as Mark ‘ABCD’ in red colour in the site plan, which measures 11’ in width and had been left by the parties during partition of land comprised in Khasra No.196(3-0), 264(0-9), 320(0-15), total measuring 4 Kanals 4 Marlas. 1.1 Originally, the land was owned jointly by Mangli, Shri Chand, Guljari and Birkha, predecessors-in-interest of the parties, each holding 1/4th share. The land was orally partitioned in the year 1990, and subsequently a GAURAV SOROT 2025.09.17 09:38 I attest to the accuracy and integrity of this document RSA-4758-2019 (O&M) -:2:- memorandum of partition was executed on 08.11.1990 in the presence of all co-sharers and other respectables of the ‘Brahmin’ community. 1.2 As per this partition, a portion measuring 17 Karams x 11 Karams towards the East-South side was allotted to the respondents– plaintiffs and his brothers. Additionally, a street of 2 Karams width was left open, as marked in red in the site plan. This street connected to an already existing street on the South side and extended up to the end of Plot No.196 towards the North. 1.3 While raising construction, the plaintiffs and their brothers left 3’ of land in front of their allotted portion adjoining the street. Defendants No.4 to 6, namely Rishi Ram, Vikram and Jai Bhagwan, taking undue advantage of the space left by the plaintiffs, raised a wall in the street adjacent to their share, thereby creating a curve in the passage. As a result, it became difficult for the plaintiffs to take out their tractors and agricultural instruments. 1.4 The plaintiffs and their brothers are also in possession of the ‘Shamlat’ land shown in green colour in the site plan. However, defendants No.1 to 3 are now attempting to block the street in front of their portion with the sole intention of obstructing the plaintiffs’ access to the said ‘Shamlat’ land. Hence, the suit for permanent injunction came to be filed. 2. Upon service of notice, defendants Nos.2, 4 and 6 entered appearance and contested the suit by filing their written statement. They raised several preliminary objections, namely: Maintainability – The suit in the present form was not maintainable. Being co-sharers, the parties could not maintain a suit for injunction inter-se. GAURAV SOROT 2025.09.17 09:38 I attest to the accuracy and integrity of this document RSA-4758-2019 (O&M) -:3:- Non-joinder of necessary parties – The suit was bad for non- joinder since all co-sharers had not been impleaded. 2.1 On merits, the contesting defendants denied that any partition of the joint holding had ever taken place, or that any written memorandum to that effect was executed amongst the parties. They specifically denied that the plaintiffs had been allotted any defined portion in the alleged partition, or that a street, as shown in red colour in the site plan, was ever reserved or left open for common use. 2.2 It was further pleaded that the alleged street did not extend up to the end of Plot No.196, as claimed by the plaintiffs. According to the defendants, the passage terminated at the southern boundary wall of the plot owned by defendants Nos.1 and 2. The plaintiffs, it was alleged, had deliberately shown the old boundary wall as a new construction in order to create a false cause of action. Defendants Nos.1 and 2, they contended, had been residing outside the village for more than 15 years; therefore, the allegation of their having raised a new boundary wall was wholly false and concocted. 2.3 The defendants further averred that the plaintiffs were already in possession of land in excess of their share and were, therefore, liable to vacate such encroached portion. They denied that the plaintiffs had left any three-foot strip of land in front of their plot or that defendants Nos.4 to 6 had taken undue advantage thereof by encroaching upon the street or raising a wall therein. They also categorically denied that the plaintiffs or their brothers were in lawful possession of the ‘Shamlat’ land; rather, their possession was illegal and unauthorized. GAURAV SOROT 2025.09.17 09:38 I attest to the accuracy and integrity of this document RSA-4758-2019 (O&M) -:4:- 2.4 It was thus pleaded that no street, as claimed, existed in the suit property and that the plaintiffs, being in illegal possession and lacking any enforceable right, were not entitled to the relief of permanent or mandatory injunction. Accordingly, dismissal of the suit was prayed for. 3. From the pleadings of the parties, and upon consideration of their respective assertions and denials, the learned Trial Court crystallized the controversies into specific issues so as to adjudicate the real questions in dispute. The issues, framed after due application of mind to the pleadings and the reliefs claimed, were as follows: 1. Whether the respondents-plaintiffs are entitled to decree for permanent injunction and mandatory injunction, as prayed for mentioned in the body of the plaint? OPP 2. Whether suit of the respondents-plaintiffs is not maintainable in the present form? OPD 3. Whether suit of the respondents-plaintiffs is bad for non-joinder of necessary parties? OPD 4. Whether the respondents-plaintiffs have not come in the court with clean hands and has suppressed true and material facts from the court? OPD 5. Relief 4. For the purpose of adjudicating the aforesaid issues, both parties were afforded adequate opportunities to adduce their respective evidence. Upon appreciation of the material on record and after hearing arguments addressed by learned counsel for the parties, the learned Civil Judge decreed the suit in favour of the plaintiffs, granting both permanent and mandatory injunctions as prayed for. Feeling dissatisfied and aggrieved by the judgment GAURAV SOROT 2025.09.17 09:38 I attest to the accuracy and integrity of this document RSA-4758-2019 (O&M) -:5:- and decree so rendered, the defendants preferred an appeal before the First Appellate Court. 5. The learned First Appellate Court, upon reappraisal of the evidence on record and after considering the rival submissions, affirmed the findings recorded by the Trial Court and consequently dismissed the appeal preferred by the defendants. Still dissatisfied with the concurrent findings of fact and law returned by both the Courts below, the appellants-defendants have now approached this Court by way of the present RSA. 6. I have given my anxious consideration to the submissions advanced by the learned counsel for the respective parties and, with their valuable assistance, have undertaken a thorough and meticulous scrutiny of the entire record available on file. 7. As regards the scope of second appeal, it is now a settled proposition of law that in Punjab and Haryana, second appeals preferred are to be treated as appeals under Section 41 of the Punjab Courts Act, 1918 and not under Section 100 CPC. Reference in this regard can be made to the judgment of the Supreme Court in the case of Pankajakshi (Dead) through LRs and others V/s Chandrika and others, (2016)6 SCC 157, followed by the judgments in the case of Kirodi (since deceased) through his LR V/s Ram Parkash and others, (2019) 11 SCC 317 and Satender and others V/s Saroj and others, 2022(12) Scale 92. Relying upon the law laid down in the aforesaid judgments, no question of law is required to be framed. 8. Learned counsel for the appellants has strenuously argued that both the Courts below have fallen into manifest error in appreciating the evidence and the legal position arising therefrom. The principal grounds urged may be delineated as follows:- GAURAV SOROT 2025.09.17 09:38 I attest to the accuracy and integrity of this document RSA-4758-2019 (O&M) -:6:- (i) Discrepancy in measurements and alleged encroachment: It is submitted that under the oral partition and the memorandum dated 08.11.1990, the plaintiffs along with their brothers were allotted an area measuring 17 x 11 karams, the width of 11 karams being equivalent to 60.5’. However, the site plan brought on record by the plaintiffs themselves reveals that the width of their house is 68’ 11”, which unmistakably establishes that they have encroached upon an excess portion of approximately 8’ 6” from the land earmarked for street purposes. In contradistinction, the appellants-defendants have raised construction strictly within the boundaries of their allotted shares and, in fact, have left an additional strip of land measuring 5’ 6” beyond their entitlement towards the street (gali). Despite this clear factual position, the Courts below erroneously held that the respondents- plaintiffs were entitled to a right of passage through the suit land to access the area shown in green colour, which itself, according to the appellants, is an encroachment by the plaintiffs. (ii) Inadmissibility of partition deed (Ex.P2): The further contention advanced is that the alleged memorandum of partition, relied upon by the plaintiffs and exhibited as Ex.P2, is wholly inadmissible in evidence in the absence of registration, as mandated under law. Being an unregistered document affecting GAURAV SOROT 2025.09.17 09:38 I attest to the accuracy and integrity of this document RSA-4758-2019 (O&M) -:7:- immovable property, it could not have been legally acted upon by the Courts below, yet both Courts have erroneously treated the same as a valid piece of evidence to uphold the plaintiffs’ case. (iii) Non-joinder of necessary parties: It is also urged that the suit was fundamentally defective for non-joinder of all co-sharers, who were admittedly parties to the original partition. In the absence of their impleadment, no effective or binding adjudication could have been made, and the decree granted is therefore unsustainable in law. 8.1 On these grounds, it is vehemently argued that the concurrent findings recorded by the Trial Court as well as the First Appellate Court are perverse, contrary to law, and liable to be set aside. 9. Per-contra, learned counsel for the respondents-plaintiffs contended that the concurrent findings recorded by the Courts below are unimpeachable and have been rightly arrived at after a careful and holistic appreciation of the evidence adduced by the parties. It is submitted that the relief of permanent as well as mandatory injunction was granted strictly in accordance with law, based on the credible testimonies of the witnesses examined and the documentary evidence produced, which clearly established the plaintiffs’ entitlement. 9.1 With regard to the document exhibited as Ex.P2, it is argued that the same merely embodies a memorandum of the oral partition executed amongst the co-sharers and does not, in its nature, operate as a formal partition deed capable of creating substantive rights in immovable property. GAURAV SOROT 2025.09.17 09:38 I attest to the accuracy and integrity of this document RSA-4758-2019 (O&M) -:8:- Consequently, the requirement of registration under the provisions of the Registration Act is wholly inapplicable, and the Courts below rightly relied upon it for evidentiary purposes to establish the partition and the portions allotted to the plaintiffs. 9.2 Learned counsel further contended that the plea of non-joinder of necessary parties is without merit. All relevant co-sharers either have been impleaded or are adequately represented for purposes of adjudication, and there is no legal bar to the grant of relief under such circumstances. The respondents-plaintiffs’ entitlement to the decree, therefore, is fully justified, and the judgments and decrees passed by the Courts below do not suffer from any illegality, impropriety, or perversity. 10. I have carefully heard learned counsel appearing for the respective parties at considerable length and have also meticulously perused the record with their able assistance. The arguments advanced by the parties have been given my thoughtful consideration, and the evidence on record has been examined in detail to ascertain the factual and legal positions necessary for adjudication of the present appeal. 11. With regard to the admissibility of Ex.P2, it is manifest from the pleadings as well as the evidence led by the plaintiffs that an oral partition was effected between the parties, which was subsequently reduced into writing in the form of Ex.P2, executed in the presence of representatives of the Brahmin community. Both the Courts below have rightly held Ex.P2 to be admissible in evidence, as it merely records a memorandum of the oral partition and does not operate as a formal partition deed transferring ownership of immovable property. Being a memorandum of an already effected oral partition, Ex.P2 does not require registration under the GAURAV SOROT 2025.09.17 09:38 I attest to the accuracy and integrity of this document RSA-4758-2019 (O&M) -:9:- Registration Act, and its admissibility for evidentiary purposes is therefore legally sound. 11.1 As regards the objection concerning non-joinder of other co- owners, it is settled that once the suit land has been partitioned among the co-sharers, each party becomes the exclusive owner of the share allotted to them. The present suit is not one seeking a declaration of title but is confined to relief by way of permanent and mandatory injunction. Accordingly, only those persons who are allegedly interfering with or threatening the rights of the plaintiffs are necessary parties to the suit. The previous co-owners of the land, after partition, do not constitute necessary parties, and therefore, the suit cannot be held to be bad on the ground of non-joinder. 11.2 With respect to the factual position of the site plan (Ex.P1) and the memorandum (Ex.P2), the Courts below admittedly did not undertake a detailed discussion of the dimensions of the plots allotted to the plaintiffs and their brothers under Ex.P2. The memorandum clearly records that a plot measuring 17 x 11 Karams fell to the share of the plaintiffs and their brothers, with the width of 11 Karams, which, when converted into feet, amounts to 60.5’. This establishes the precise dimensions of the plot allotted to the plaintiffs under the partition. 12. According to the site plan, Ex.P1, the combined width of the plaintiffs’ plot, the disputed street, and the allegedly encroached portion measures 79.11’. As per the memorandum of partition, the area allotted to the plaintiffs and their brothers measures 60.5’ in width, and a street of 11’ was left open for access. The total of these two measurements would amount to 71.5’, which indicates an excess area of approximately 8.6’ beyond the allotted share. Even assuming, for the sake of argument, that the appellants- GAURAV SOROT 2025.09.17 09:38 I attest to the accuracy and integrity of this document RSA-4758-2019 (O&M) -:10:- defendants have constructed over 3’ of this excess area, there still remains an access area of 5.6’. Notably, both the Courts below have failed to appreciate this factual position and have relied solely on the oral testimonies of witnesses, without discussing or reconciling the discrepancies between the dimensions recorded in Ex.P1 and the shares allotted under Ex.P2. 13. It is a settled principle of law that while persons may misrepresent facts, documents cannot lie. As per the plaint, the plaintiffs themselves claim that the width of their plot is 11 Karams, as recorded in Ex.P2. However, the site plan prepared by the plaintiffs (Ex.P1) is clearly not in conformity with the dimensions specified in Ex.P2. A conjoint reading of Ex.P2 and Ex.P1, therefore, does not support the allegation that Rishi Ram or Jai Bhagwan encroached upon any portion of the street. Rather, it demonstrates that the site plan upon which the present suit is predicated was prepared without adhering to the foundational document of title, Ex.P2. 13.1 Consequently, the version of the respondents-plaintiffs is rendered factually inaccurate and unreliable, and the findings of both the Courts below, which relied heavily on oral testimonies while disregarding the clear dimensions provided in Ex.P2, are perverse and unsustainable. Having meticulously considered the evidence, it is evident that the Courts below misread the evidence and erred in law and fact in upholding the plaintiffs’ claim. 13.2 In light of the foregoing discussion and upon careful consideration of the evidence and submissions advanced by the parties, the concurrent findings and decrees rendered by the Trial Court as well as the First Appellate Court are hereby set aside. Consequently, the present appeal GAURAV SOROT 2025.09.17 09:38 I attest to the accuracy and integrity of this document RSA-4758-2019 (O&M) -:11:- preferred by the appellants is allowed, and the judgments and decrees passed by the Courts below stand vacated and annulled. 14. In view of the disposal of the main appeal, all pending miscellaneous applications, if any, connected with or arising out of the present proceedings, shall stand disposed of accordingly. No further orders are required in this regard. ( VIRINDER AGGARWAL) 16.09.2025 JUDGE Gaurav Sorot Whether reasoned / speaking? Yes / No Whether reportable? Yes / No GAURAV SOROT 2025.09.17 09:38 I attest to the accuracy and integrity of this document