Punjab-Haryana High Court
Qayam Din vs Sadiqan & Ors on 16 November, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.3020 of 2012(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.3020 of 2012(O&M)
Date of Decision:-November 16, 2012
Qayam Din.
......Appellant.
Versus
Sadiqan & Ors.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. Ashok Bhardwaj, Advocate for the appellant.
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JASWANT SINGH, J.
Plaintiff/appellant is in second appeal against the concurrent findings returned by both the courts below, whereby his suit for permanent injunction was dismissed by the learned Civil Judge(Jr. Divn.), Malerkotla vide its judgment and decree dated 09.12.2008 and the findings thereof were affirmed by the learned Additional District Judge, Sangrur vide judgment and decree dated 15.05.2012.
In brief, the facts of the case are that plaintiff Qayam Din had filed civil suit no.150 of 17.05.2003 for permanent injunction whereby he had claimed himself to be the owner in possession of the property in question and alleged that defendant Sadiqan is trying to dispossess the plaintiff from the disputed property in connivance with the other defendants.
RSA No.3020 of 2012(O&M) #2# Upon notice, defendants filed joint written statement claiming that defendant no.1 Sadiqan is a co-owner to the extent of 7/32 share and is in possession of the land to the extent of her share.
Replication was filed wherein the entire contents of the plaint were reiterated and that of the written statement were denied.
From the pleadings of the parties issues were framed. Both sides lead evidence in support of their respective claims and after appreciating their evidence, learned trial Court dismissed the suit of the plaintiff vide judgment and decree dated 09.12.2008 and the findings thereof were affirmed by learned lower Appellate Court vide judgment and decree dated 15.5.2012. Hence the present second appeal.
I have heard learned Counsel for the plaintiff/appellant and have also gone through the case file carefully with his able assistance.
Learned Counsel for the plaintiff/appellant has vehemently argued that the findings returned by both the courts below are wrong, illegal and are liable to be set aside on the ground that co-sharer in possession of land to the exclusion of other co-sharers has right to remain in occupation till partition. He has placed reliance upon judgments passed by this High Court in Sarla Kumari Vs. Santosh Kumari 1997 (1) Civil Court Cases 168(P&H) & Bal Kishan Vs. Ram Singh 2001(3) Civil Court Cases 52 (P&H). Thus it was prayed that both the courts below ought to have decreed the suit of the plaintiff and hence the findings returned by them are liable to be set aside. It was further argued in alternative that since there is no finding regarding possession, therefore, the matter should be remanded back to determine the question RSA No.3020 of 2012(O&M) #3# as to who is in possession of the property at present.
After hearing learned Counsel for the appellant, this Court is of the considered view that the present appeal is devoid of any merit and the same deserves to be dismissed.
As far as the legal position that has been argued before this Court is concerned, I am in complete agreement with the same. However, the said legal position cannot be taken to be a rule of universal application and has to be seen on the facts and circumstances of each and every case. In the present case it has been observed by both the courts below that in an earlier round of litigation between the parties, specific findings were recorded in CA No.211 of 03.01.2001 decided on 01.04.2002(Ex.P-9) whereby the learned Appellate Court had recorded a finding to the following effect:-
"Learned lower Court, thus, erred in holding that plaintiff is in possession of whole of the suit property and consequently restraining defendant no.2 from dispossessing the plaintiff from the suit land. This finding of the learned lower Court cannot be sustained."
Learned lower Appellate Court in previous suit had reversed the findings recorded by learned trial Court on the ground that the plaintiff is a co-sharer in suit land along with Sadiqan, so as per judgment Ex.P-9 both the parties were held to be co-sharers in the suit land and findings recorded by learned lower Court in favour of Qayam Din that he is in possession of whole of the suit property was reversed . It is not in dispute that the said judgment Ex.P-9 has become final among the parties RSA No.3020 of 2012(O&M) #4# as the same was never challenged by either of them. So none of the parties can be said to be in exclusive possession over any part of the property. As per jamabandi of the year 1998-99 (Ex.P-7), revenue entries show both Qayam Din and Sadiqan to be in joint possession as co- sharers/co-owners of the property. Presumption of truth is attached to the entries of jamabandi as per Section 44 of the Punjab Land Revenue Act and the same can be rebutted by cogent and convincing evidence only. However, in the present case none of the parties have challenged the jamabandi of the year 1998-99 to have not been correctly recorded. As such, the plaintiff has miserably failed to prove that he is in exclusive possession of the property in dispute as the onus was upon him to substantiate his plea of being in possession and cannot take advantage of the weaknesses of the case of the defendant. Thus, both the arguments of the learned Counsel for the appellant are hereby negated being devoid of any merit.
In view of the above, finding no question of law much less substantial question of law arising for determination in the present second appeal, the same is hereby dismissed.
( JASWANT SINGH ) JUDGE November 16, 2012 Vinay