Punjab-Haryana High Court
Balwinder Singh S/O Waryam Singh vs Gurcharan Singh And Others on 12 May, 2010
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.1097 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1097 of 2010 (O&M)
Date of decision: 12.5.2010
Balwinder Singh s/o Waryam Singh ......Appellant(s)
Versus
Gurcharan Singh and others ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Bhuwan Luthra, Advocate for the appellant.
Rakesh Kumar Garg, J. (Oral)
CM No.5467-C of 2010 For the reasons recorded, this application is allowed. Order dated 31.3.2010 is recalled and the appeal is restored to its original number.
RSA No.1097 of 2010 (O&M) This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for permanent injunction restraining the respondents from alienating the suit land, was dismissed.
As per the averments, the appellant was in exclusive possession of the property in question being co-owner. The defendants are also co-owners in the suit property. However, they have no right to alienate the suit property more than their share but they have threatened to dispose of the suit property more than their share. Hence, the present suit.
Upon notice, the defendant-respondents filed written statement contesting the averments made in the plaint raising various legal RSA No.1097 of 2010 (O&M) 2 objections. They further stated that the plaintiff-appellant has failed to disclose the factum of the pendency of an earlier suit titled as Amarjit Singh v. Gurcharan Singh etc. in which he was also a party and had filed written statement. The property in question was given to defendants No.2 and 3 in family settlement by the appellant in Civil Suit No.811 of 18.10.1991 decided on 3.4.1993 titled as Gurdev Singh v. Waryam Singh and others on the basis of compromise Ex.CX. The plaintiff has failed to challenge the said judgment and decree due to which he has no locus standi to file the present suit. It was further stated that Waryam Singh sold 10 Bighas of land to Ajmer Singh and Swarn Singh etc. and during his life time, some property was handed over to Gurdev Singh and Gurdev Kaur in the family settlement. The defendants were in exclusive possession of the disputed property and they had a right to deal with the same in any manner.
On the basis of the evidence led by the parties and after hearing both the counsel for the parties, trial Court dismissed the suit.
Aggrieved by the judgment and decree of the trial Court, the plaintiff-appellant filed an appeal which was dismissed by the Lower Appellate Court. While dismissing the appeal, the Lower Appellate Court observed as under:
"After hearing learned counsel for the parties and perusing the record, I am of the opinion that it is admitted fact that originally suit property was owned and possessed by Waryam Singh. Whereas, Waryam Singh had already delivered the disputed property measuring 1 bigha 3 biswas comprising khasra No.7347/5253/1136/1-3 situated in the revenue estate of Dhuri, in favour of Gurdev Singh and Gurdev Kaur defendants No.2 and 3 vide decree Ex.D3. Meaning RSA No.1097 of 2010 (O&M) 3 thereby, the appellant-plaintiff has left with no right, title or interest in the disputed property after the death of Waryam Singh and the appellant-plaintiff has not challenged the said decree, so , qua him, it has attained finality. However, the said decree was challenged by Amarjit Singh by filing civil suit titled as 'Amarjit Singh Versus Gurbachan Singh', in which, appellant-plaintiff was arrayed as defendant No.2 and he had also filed written statement in that suit. Meaning thereby, he was in the knowledge of the fact that decree had been challenged and the said suit is pending for disposal in the court of Civil Judge (Junior Division), Dhuri. However, he has concealed the material facts of another civil suit mentioned above from the court, so otherwise also, he is not entitled to injunction.
Even if, the decree is under challenge is set aside, it cannot be said that the appellant-plaintiff has any right, title or interest in the suit property. Moreover, it has been held by the court below that if the respondents- defendants in any manner alienate the suit property out of their share by mentioning specific Khasra numbers or specific portion, the said sale would amount to alienation only to the extent of share of the respondents- defendants, so in no way, he is going to suffer any loss. As such, I have come to the conclusion that the court below has rightly held that the appellant-plaintiff has failed to prove his exclusive possession over the suit property. Therefore, I do not find any irregularity or RSA No.1097 of 2010 (O&M) 4 illegality committed by the learned lower court while deciding issues No.1 and 2. Hence, findings given by the learned court below on both these are hereby reaffirmed."
Still not satisfied, the appellant has approached this Court by submitting that the following substantial questions of law arises in this appeal:
"1. Whether the Civil Court decree in Civil Suit No.811 of 18.1.191, decided on 3.4.1993 is null, void, illegal and inoperative qua the rights of the appellant?
2. Whether the appellant can be deprived of his share from the family property?"
I have heard learned counsel for the appellant and perused the impugned judgment and decrees.
Admittedly, the defendant-respondents are co-owners in the disputed property. The only grievance of the appellant before this Court is that the defendant-respondents have no right to alienate more than their share or specific Khasra number out of the disputed property. As per the settled law, any alienation out of the joint property by a co-sharer would amount to alienation of the property out of the share. Even the alienation of any specific khasra number or specific portion amounts to alienation of the share which is subject to adjustment at the time of partition. It is also well settled that suit for permanent injunction against a co-owner is not maintainable. Moreover, the Courts below on appreciation of evidence have recorded a finding of fact that the plaintiff was neither a co-owner nor in possession over the disputed property and thus, was not entitled to the discretionary relief of injunction. Learned counsel for the appellant was unable to challenge the aforesaid finding recorded by the Courts below. RSA No.1097 of 2010 (O&M) 5
No substantial question of law arises.
Thus, I find no merit in this appeal.
Dismissed.
May 12, 2010 (RAKESH KUMAR GARG) ps JUDGE