BALBIR SINGH Vs. JAGIR SINGH

JUDGEMENT

(1.) THIS Judgment disposes of R. S. A. Nos. 204 and 523 of 1993.

(2.) TWO brothers, namely, Balbir Singh and Jagir Singh, filed civil suits bearing No. 271-1 of 27. 5. 88/23. 5. 90 and 270-1 of 16. 5. 88/90, respectively, for permanent injunction restraining each other from disturbing their exclusive possession over the plot in dispute measuring 12 marlas situate at village Manawan. Both these suits were dismissed by the trial Court on November 24, 1990 holding that neither of the parties was in exclusive possession of the disputed property and that they should be deemed to be in joint possession thereof by operation of law. Aggrieved against the Judgment and decree of the trial Court, both the brothers filed Civil Appeal No. 5 of 1991 and Civil Appeal No. 281 of 1990 respectively. The same were disposed of by the first appellate Court by a common Judgment dated November 13, 1992. The first appellate Court reversed the Judgment and decree of the trial Court in so far as it had dismissed Civil Suit No. 270-1 of 16. 5. 88/16. 5. 88/90 (giving rise to Civil Appeal No. 281 of 1990) but it decreed the suit filed by Jagir Singh (giving rise to Civil Appeal No. 5 of 1991) holding that he was in exclusive possession of the disputed property and was disposed by Balbir Singh (appellant in the appeals and plaintiff in Civil Suit No. 271-1 of 27. 5. 88/90) during the pendency of the suit. It accordingly passed a decree for mandatory injunction in favour of the plaintiff in Civil Suit No. 270-1 of 16. 5. 88/23. 5. 90 and directed the defendant in the suit, namely, Balbir Singh, to restore the possession to him. The Judgment and decree in Civil Suit No. 271-1 of 27. 5. 88/90 filed by Balbir Singh was affirmed. Balbir Singh has challenged the Judgment and decree of the first appellate Court through these two regular second appeals.

(3.) THE questions arising for determination are whether the sole respondent (plaintiff in Civil Suit No. 271-1 of 16. 5. 88/23. 5. 90 and defendant in Civil Suit No. 271-1 of 25. 5. 1988/90) was in exclusive possession of the property in dispute and whether the first appellate Court was justified in passing a decree for mandatory injunction in his favour, more particularly when the relief was not claimed in the plaint.