Punjab-Haryana High Court
M/S Arun Dev Builders Ltd vs Daya Chand And Others on 10 October, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1584 of 2013 (O&M)
Date of decision: 10th October, 2013
M/s Arun Dev Builders Ltd.
Appellant
Versus
Daya Chand and others
Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
*****
Present: Mr. Shiv Kumar, Advocate for the appellant.
Mr. Ram Bilas Gupta, Advocate for respondents No.1 to 9.
RAKESH KUMAR GARG, J.
CM No.4211-C of 2013 For the reasons mentioned in the application, which is supported by an affidavit, delay of 7 days in filing the appeal is condoned.
The application stands disposed of.
RSA No.1584 of 2013 (O&M) Plaintiff-respondents filed a suit for permanent injunction pleading that they were owner/co-sharers of the land bearing Khewat No.361, Khatoni No.443, Rect. No.117, Killa Nos.16/2/(7-3), 17(4-10), Singh Rattan Pal 2013.10.11 17:16 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.1584 of 2013 (O&M) 2 total measuring 11 Kanals 13 Marlas to the extent of 3/4th share; whereas defendants No.2 to 5/proforma respondents, who were owner/co-sharers to the extent of 1/4th share, sold their share to defendant No.1 (now appellant) vide sale deed No.9249 dated 28.09.2005. As per the sale deed, defendants No.2 to 5 have put the appellant in possession of the land towards south. It is averred on behalf of the plaintiff-respondents that the co-sharers were in possession by mutual consent and without final partition. However, defendant No.1 wanted to raise construction and change the nature of the suit land by raising construction on the land in his possession, and thus, necessity arose to file the instant suit for permanent injunction restraining the defendants from raising construction and changing nature of the suit land, and also from demolishing the value of the suit land without partition by metes and bounds. Further relief of mandatory injunction was sought in case the defendants succeed in executing their plans during the course of proceedings.
Upon notice, the defendants appeared and filed written statement raising various preliminary objections. The factum of common ancestor is not disputed. Ownership of the share of respective parties is also not disputed. Sale of 1/4th share by defendants No.2 to 5 in favour of the appellant vide sale deed dated 28.09.2005 is also not disputed. However, the defendants have contested the possession over the suit property as described by the plaintiff-respondents. They claim themselves to be in cultivating possession in southern side which fall to their share by mutual consent and accordingly handed over the said Singh Rattan Pal 2013.10.11 17:16 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.1584 of 2013 (O&M) 3 possession to the appellant. Denying the other contents, dismissal of the suit was prayed for.
During the trial of the case, defendant No.5 was given up vide order dated 16.11.2005. Legal Representatives of defendant No.4 failed to appear and were proceeded against ex-parte vide order dated 30.08.2010. No replication was filed.
From the pleadings of the parties, the following issues were framed by the trial Court:
1. Whether the plaintiffs are entitled to a decree of permanent injunction, as prayed for? OPP
2. Whether the plaintiffs are entitled to mandatory injunction, as prayed for? OPP
3. Whether the suit of the plaintiffs is not maintainable?
OPD
4. Whether this Court has no jurisdiction to entertain and try the present suit? OPD
5. Whether the plaintiffs have no locus standi or cause of action to file the present suit? OPD
6. Whether the plaintiffs have not come to the Court with clean hands? OPD
7. Whether the suit has not been properly valued? OPD
8. Whether the suit is bad for non-joinder and mis-
joinder of necessary parties? OPD
9. Whether the suit is liable to be rejected under Order 7 Rule 11 CPC? OPD Singh Rattan Pal 2013.10.11 17:16 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.1584 of 2013 (O&M) 4
10. Relief.
After hearing learned counsel for the parties and going through the record, the trial Court decided issues No.1 and 2 holding that the defendants cannot be allowed to raise construction over the suit property as it would be inconsistent to the rights of other co- sharers. Issues No.3 to 9 were decided against the defendants and consequently, suit of the plaintiff-respondents was partly decreed vide judgment and decree dated 21.12.2010 and defendants were restrained from raising any further construction over the suit property or changing nature thereof except in due course of law. It was further directed that the construction, if any, existing at the spot shall be subject to partition between the parties and no purpose would be served by demolishing the structure as the same may be divided between the parties as and when partition takes place.
Aggrieved from the aforesaid judgment and decree of the trial Court, defendant No.1 filed an appeal before the first appellate Court, which was also dismissed vide judgment and decree dated 19.11.2012 and the findings of the trial Court were affirmed. While dismissing the appeal, the first appellate Court observed as under:
"It is settled proposition of law that a co-owner has an interest in the whole property and the possession of joint property by one co-owner is possession of all, in the eyes of law. Coming to the case in hand, I find that it is not disputed that the suit land is ancestral property. It is also not disputed that the suit property has not been partitioned Singh Rattan Pal 2013.10.11 17:16 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.1584 of 2013 (O&M) 5 by metes and bounds through any competent Court of law. It is admitted fact that defendants No.2 to 5 proforma respondents sold their 1/4th share to appellant-defendant No.1 vide sale deed No.9249 dated 28.9.2005. Thus, the sale by defendants No.2 to 5 to appellant-defendant No.1 is of share and not of any specific portion. Defendants' own witnesses namely DW3 Shankar Lal and DW4 Daulat Ram have admitted in their cross-examination that the suit property has not been partitioned and it is still joint. In these circumstances, I observe that the appellant- defendant No.1 has stepped into the shoes of defendants No.2 to 5 and has become a co-sharer in the suit property which is joint. The learned Lower Court has rightly held that when the sale deed executed by proforma respondents-defendants No.2 to 5 to appellant-defendant No.1 is regarding the share and not of specific portion of the suit land, then the recital that the possession has been delivered to the purchaser towards the southern side is of no consequence as law is well settled that no one can pass better title than what he has. It is also rightly held by learned lower Court that if a co-sharer is in possession of a portion of the suit land, he is deemed to be in possession on behalf of all other co-sharers. It is rightly held by learned lower Court that since the parties are co-sharers in the suit land, a co-sharer is allowed to use the property in husband like manner not inconsistent with similar rights of other co-sharers. In these circumstances, the appellant- defendant No.1 cannot be allowed to raise construction over the suit property till the partition takes place. Thus, Singh Rattan Pal 2013.10.11 17:16 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.1584 of 2013 (O&M) 6 the learned lower Court has rightly restrained the appellant-defendant No.1 from raising further construction."
Still not satisfied, defendant No.1 has filed the instant appeal submitting that the following substantial questions of law arise in this appeal:
a) Whether there is total misreading of facts and evidence by the learned courts below while ignoring the material and relevant piece of documentary evidence which is serious error in law vitiating effect on the finding?
b) Whether once the learned courts below have held that the possession and already existing construction over the specific portion of the suit land is lawful and permissive possession then the appellant can be restrained from raising further construction over the same portion?
c) Whether the judgments and decrees passed by the learned courts below are perverse?
d) Whether grave and manifest injustice is being done to the appellant?
In support of his case, counsel for the appellant has vehemently argued that the appellant is a successor in interest of defendants No.2 to 5 who were in specific possession of the suit Singh Rattan Pal 2013.10.11 17:16 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.1584 of 2013 (O&M) 7 property and have put the appellant in possession and therefore, the appellant is entitled to protect his possession over a specific portion of the joint Khata till the partition takes place between the parties and therefore, the impugned judgments and decrees of the courts below are liable to be set aside.
From the facts, as noticed above, it is clearly made out that the appellant wants to raise construction on the suit land towards its southern side, thereby changing nature of the suit property from agricultural to Gair Mumkin Abadi, for which he has no right as the said act is detrimental to the interests of the other co-sharers who have full right to safeguard their own interests.
At this stage, it may further be noticed that law is well settled in this regard. It is well settled that where a co-owner in possession of a specific portion of the joint holding and recorded as such in the revenue record, transfers any right, title or interest, from the portion in his specific possession, his vendee would be entitled to protect the portion so transferred, without however, asserting exclusive ownership to the portion so transferred and possessed, till such time as the joint estate is not partitioned.
My aforesaid view finds support by a Full Bench judgment of this Court rendered in 'Ram Chander v. Bhim Singh & others' 2008(3) RCR (Civil) 685.
In view of the aforesaid observations of this Court and the law as settled, this Court finds no merit in the instant appeal. Singh Rattan Pal 2013.10.11 17:16 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.1584 of 2013 (O&M) 8
Thus, the substantial questions of law, as raised, do not arise in this appeal.
Dismissed.
(RAKESH KUMAR GARG) JUDGE October 10, 2013 rps Singh Rattan Pal 2013.10.11 17:16 I attest to the accuracy and integrity of this document Punjab & Haryana High Court