Punjab-Haryana High Court
Daya Kaur vs Iqbal Singh And Others on 8 February, 2012
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
RSA No. 2830 of 2011 (O & M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 2830 of 2011 (O & M)
DATE OF DECISION: February 08, 2012
Daya Kaur .........APPELLANT(S)
VERSUS
Iqbal Singh and others ......RESPONDENT(S)
CORAM: HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present: Mr. Ajit Malik, Advocate,
for the appellant(s).
G.S. SANDHAWALIA, J. (ORAL)
C.M. No. 7740-C of 2011 This is an application for condoning delay of 45 days in filing the appeal.
Application is allowed, in view of averments made in the application, which is duly supported by an affidavit. RSA No. 2830 of 2011 (O & M)
1. The plaintiff is aggrieved against the concurrent findings of the Courts below, whereby the suit of the plaintiff for permanent injunction has been dismissed.
2. The case of the plaintiff was that the plaintiff and defendants were co-sharers in the land comprised in Khewat No. 83/73 Khatoni No. 103, 104, 105, 106, 107, 108, 109 total measuring 271 kanals 13 marlas situated at village Bahu Jamalpur, Tehsil and District Rohtak. There were other co- sharers also. The plaintiff had 24/576 share and she being co-sharer and RSA No. 2830 of 2011 (O & M) 2 joint owner in possession, was in actual possession of the land comprised in Khewat No. 83/73 Khatoni No. 104 Rect. & Killa No. 36/3(8-0), 86/18Min (3-6) Northern measuring 11 kanals 6 marlas as per jamabandi for the year 2001-02 and that she was in lawful possession of the aforesaid specific land and she had also sown HARAR crop. It was alleged that the defendants were threatening to interfere in the possession of the plaintiff and were causing hindrance in getting the crop cut by the plaintiff.
3. The defendants appeared and filed written statement, in which they took various preliminary objections, including that the suit is not maintainable and the plaintiff has no locus standi to file the present suit and that the co-sharer cannot file a suit for injunction against other co-sharer and the plaintiff should have got the whole khewat partitioned and seek separate share in the khewat and get possession though the revenue Court by partition. It was alleged that the suit was misconceived and misuse of process of civil Court by using false device, the petition for partition of this khewat including this land was also pending in the revenue Court in which the plaintiff had been served and had appeared and was using delaying tactics for its decision showing her mala fide intention. It was denied that the plaintiff was in actual possession of the suit land bearing Khatoni No. 104 Min., Rect. & Killa No. 36/3(8-0), 18 Min(3-6) measuring 11 kanals and 6 marlas. The allegations of threatening and hindrance were also denied.
4. The trial Court framed the following issues:-
"1. Whether the plaintiff is in actual possession of the land being co-sharer comprised in khewat No. 83/73 Khatoni No. 104, Killa No. 36/3(8-0), 36/18Min(3-6) Northern, RSA No. 2830 of 2011 (O & M) 3 measuring 11 Kanals & 6 Marlas as mentioned in para no. 2 of the plaint?OPP
2. Whether the plaintiff is entitled to a decree for permanent injunction as prayed for?OPP
3. Whether the suit is not maintainable in the present form?OPD
4. Whether plaintiff has no locus standi to file the present suit?OPD
5. Whether the suit property has not been partitioned as alleged?OPD
6. Whether Jaipal is not power of attorney holder of plaintiff Daya Kaur?OPD
7. Whether the suit is bad for non-joinder of necessary parties?OPD
8. Whether the plaintiff has not come to the Court with clean hands?OPD
9. Relief."
5. After examining the evidence on the record, the trial Court gave its finding that as per jamabandi for the year 2001-02 Ex. P-3, the plaintiff was neither co-sharer nor in joint possession of the land comprised in Khewat No. 83/73 Khatoni No. 104 and was a co-sharer and joint owner in the land comprised in Khewat No. 83/73 Khatoni No. 103 and it contained total land measuring 9 kanals 5 marlas and the share of the plaintiff being co-sharer and joint owner is to the extent of 24/576 i.e. 7.7 marlas and accordingly, came to the conclusion that since the plaintiff was not co- sharer and joint owner of the said Khatoni No. 104, therefore, no injunction RSA No. 2830 of 2011 (O & M) 4 could be granted against other co-sharers.
6. Accordingly, the suit was dismissed on 24.12.2009 by the Civil Judge (Junior Division), Rohtak. The appeal preferred before the District Judge, Rohtak was also dismissed on 27.01.2011 and resultantly, the present regular second appeal has been filed.
7. Counsel for the appellant has contended that there was misreading of the evidence on record and the plaintiff was entitled to injunction.
8. Submission of the counsel is without any merit. The specific case of the plaintiff was that she was co-owner in Khewat No. 83/73 Khatoni No. 103, 104, 105, 106, 107, 108, 109 total measuring 271 kanals 13 marlas situated at village Bahu Jamalpur, Tehsil and District Rohtak as per jamabandi for the year 2001-02 and was in actual possession of Khewat No. 83/73, Khatoni No. 104 Rect. & Killa No. 36/3(8-0), 86/18Min(3-6) Northern measuring 11 kanals 6 marlas. The Courts, after examining the revenue record have come to categorical conclusion that the plaintiff is not in possession of the said khewat and khatoni number but is only co-sharer and joint owner in different khewat and khatoni number, which measures 9 kanals 5 marlas and the share of the plaintiff comes to only 7.7 marlas of land. It is settled that injunction cannot be granted against a co-sharer and specially at the instance of a co-sharer, who is not in possession. It is settled that each co-sharer has a right in each parcel of land till it is partitioned and in the present case, it has been pleaded that there were partition proceedings which were concealed by the plaintiff. Reference can safely be made to a Division Bench judgment rendered by this Court in Bachan Singh vs. Swaran Singh, 2000 (3) PLR 416, in which it is held that a co-owner, who is not in possession, is not entitled to seek injunction RSA No. 2830 of 2011 (O & M) 5 against the other co-owner and the right of the co-owner is to seek partition and not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of which he is doing as co-owner.
9. Accordingly, no fault can be found with the well reasoned judgments of the Courts below, whereby the relief of said injunction has been declined. There is no question of law much less any substantial question of law arising for consideration before this Court and the present regular second appeal is dismissed in limine. Judgments and decrees of the Courts below are hereby upheld.
08.02.2012 (G.S. SANDHAWALIA) shivani JUDGE