Punjab-Haryana High Court
Ajit Singh vs Santokh Singh And Others on 14 January, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
RSA No.3638 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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RSA No.3638 of 2011 (O&M)
Date of Decision:14.01.2014
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Ajit Singh
. . . .Appellant
Versus
Santokh Singh and others
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.A.S. Syan, Advocate,
for the appellant.
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RAKESH KUMAR JAIN, J.
The plaintiff is in second appeal in a suit for permanent injunction dismissed by both the Courts below.
As per the case of the plaintiff, Kesar Singh, grandfather of the plaintiff was the original owner of the suit land, who left behind his father Iqbal Singh and his daughters (defendants Nos.1 to 3). Defendants No.4 to 11 are the legal heirs of Surjit Kaur another daughter of Kesar Singh. Iqbal Singh father of the plaintiff had held already sold 4 kanals of land out of the suit land. Mohinder Kaur wife of Iqbal Singh sold 2 kanals 2 marlas of land out of the suit land and now only 3 kanals 4 marlas of land is left in the suit land. Defendant No.1 is the resident of Arianmajra and the other defendants never came to the village nor bothered about RSA No.3638 of 2011 -2- the land in question. The plaintiff is in possession since long but since defendants tried to interfere in his possession, the suit is filed.
On the other hand, the case of the defendants is that after the death of Kesar Singh his estate was mutated to the extent of half share each in favour of Iqbal Singh and Mohinder Kaur and after the death of Mohinder Singh his share was inherited by Iqbal Singh and defendants No.1 to 3 being brother and sisters of Mohinder Singh and also by Surjit Kaur predecessor-in-interest of defendants No.4 to 11. The share of Iqbal Singh was wrongly mentioned as 7/10 in the jamabandi as he was having 6/10 share. The shares of defendants No.1 to 3 and Surjit Kaur has also been wrongly mentioned as they were having 4/10 share. An application in this regard was filed for correction in jamabandi. The alienation made by Mohinder Kaur and Iqbal Singh is admitted but it has been alleged that the said alienation made by Mohinder Kaur out of joint khewat is beyond her share as she could only alienate the land to the extent of 1 kanal 12 marla whereas she sold the land measuring 2 kanal 2 marla as such she sold 10 marla of land in excess to her share. The remaining land out of the joint khewat is owned by the defendants being co-sharers and they are in actual physical possession. The plaintiff is not in exclusive possession of any part of the suit land, therefore, there is no question of RSA No.3638 of 2011 -3- extending any threat to him for which he could file suit for permanent injunction.
On the pleadings of the parties one of the issues raised is "whether plaintiff is in actual physical possession of the suit land?"
It has been found by both the Courts below that the plaintiff has failed to prove exclusive possession over the land in dispute and in this regard following observations have been made: -
"As regards the possession of the plaintiff/appellant over the suit property. I think the plaintiff/appellant has even not been able to prove his possession on any portion of the suit property. Since, the suit property is joint and out of this joint khata the parents of plaintiff/appellant Ajit Singh have already sold more than their share, as such, it cannot be said that at the time of filing the suit. Ajit Singh plaintiff was in possession of any portion of the suit property. No doubt, in order to prove his possession, the plaintiff/appellant has relied on the order passed by the Collector dated 19.3.2008, copy of which is Ex.p6. As RSA No.3638 of 2011 -4- per this order, the khasra girdawari of the suit property has been changed in the name of plaintiff/appellant, on the basis of which he is alleging this possession over the suit property. But in my view since this order dated 19.3.2008 regarding correction of khasra girdawari has been passed by the revenue authorities during the pendency of the civil suit, ,I think it cannot adversely affect the rights of the defendants/respondents over the suit property. Moreover, the Collector while passing the order dated 19.3.2008 hopelessly failed to explain as to when the plaintiff/appellant came in possession of this land measuring 3 kanal 4 marla. As such, when the learned lower court dismissed the injunction suit filed by the plaintiff/appellant, after appreciating the oral as well as documentary evidence produced by both the parties, I think no illegality can be found in the judgment and decree dated 7.5.2008." RSA No.3638 of 2011 -5-
Learned counsel for the appellant has failed to prove before this Court exclusive possession of the plaintiff in order to seek permanent injunction against the defendants.
In view thereof, I am of the considered opinion that the suit filed by the plaintiff has rightly been dismissed by both the Courts below. Hence, the present appeal being denuded of any merit and not having any question of law is hereby dismissed. No costs.
(RAKESH KUMAR JAIN) 14.01.2014 JUDGE Vivek Pahwa Vivek 2014.01.21 17:53 I attest to the accuracy and integrity of this document