Punjab-Haryana High Court
(O&M;) Jangir Singh vs Naranjan Singh on 30 September, 2014
RSA No.289 of 1986 -:1:-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
RSA No.289 of 1986
DATE OF DECISION: SEPTEMBER 30, 2014.
Jangir Singh ....Appellant.
VERSUS
Naranjan Singh and others ....Respondents.
CORAM: HON'BLE MRS. JUSTICE SNEH PRASHAR.
1. Whether the judgment should be reported in the digest? Yes/No
----
Present: Mr. Harminder Singh, Advocate
for the appellant.
Mr. Vinod Kataria, Advocate
for the respondents.
SNEH PRASHAR, J.
1. This was an appeal preferred by Jangir Singh son of Hazara Singh, appellant-defendant impugning the judgment and decree dated 21.12.1985 granted by learned Additional District Judge, Faridkot reversing the judgment and decree dated 03.08.1982 passed by Sub Judge Ist Class, Moga, by virtue of which the suit for permanent injunction filed by plaintiffs-respondents Naranjan Singh and others was dismissed.
2. Precisely, the case of the plaintiffs was that the land bearing Khasra No.4 and "Tukra" portion no.501, situated in the area of village JITENDER 2014.10.17 14:59 I attest to the accuracy and integrity of this document RSA No.289 of 1986 -:2:- Jhandiana Sharki red line, Tehsil Moga (hereinafter referred to as the "suit land") belonged to Shamlat Patti which was partitioned by Collector, Moga vide order dated 23.05.1982. As a result of the partition, the suit land was allotted to Ghania Ka Thola. Dayal Singh etc. were the sons of Ghania Singh. A pedigree table of Shri Ghania Singh was mentioned according to which they (plaintiffs no.1 to 3, namely, Naranjan Singh, Chanan Singh and Inder Singh) were sons of Harnam Singh son of Dayal Singh son of Ghania Singh and plaintiff no.4 Ujagar Singh was son of Maghi Singh son of Sajjan Singh grand son of Ghania Singh.
The plaintiffs claimed that Nand Singh, Mewa Singh, Kehar Singh and Sardara Singh sons of Sampuran Singh son of Sajjan Singh, grand son of Ghania Singh, were co-sharers in the suit property and they sold their share to Natha Singh son of Bila Singh, who further sold the share to Jangir Singh-defendant.
Alleging that Jangir Singh was now bent upon to raise construction on the suit land whereas he had no right to do so until the suit land was partitioned between the co-sharers, the plaintiffs filed the present suit seeking a permanent injunctive order against him.
3. Jangir Singh-defendant appeared and contested the suit. He pleaded that Natha Singh son of Bila had sold a plot measuring 12 Marlas out of the suit land to his father Hazara Singh vide registered sale deed dated 6th January, 1947. Thereafter, Nand Singh, Mewa Singh and Kehar Singh sons of Sampuran Singh sold another land measuring 9 Marlas out of the suit land to him and his sons. In addition to the same, he also purchased JITENDER 2014.10.17 14:59 I attest to the accuracy and integrity of this document RSA No.289 of 1986 -:3:- a house from one Kartar Singh constructed in an area of 26 Marlas. A plot measuring 3 Kanals owned and possessed by him was also adjoining to the suit land and in that manner he was in possession of land measuring about 5 Kanals at the disputed site. He had already constructed a residential house at the said site by spending approximately Rs.1 Lac from his pocket and had been residing in the house alongwith his sons and other members of the family. According to him, the plaintiffs had no concern whatsoever with the land in his possession.
The defendant added that being owner in possession of land measuring 12 Marlas out of the suit land towards the Western side and the plaintiffs having no concern whatsoever with the same, he has every right to raise construction on the land in his possession. He denied that the suit land was ever part of Shamlat Patti or belonged to the proprietors of the village. The description of the suit land given in the plaint as well as the site plan filed by the plaintiffs was disputed by him and dismissal of the suit was prayed.
4. On the rival contentions of the parties, issues were settled and both the parties led oral and documentary evidence to substantiate their pleadings.
5. Having considered the contentions raised on both sides, learned trial Court coming to the conclusion that if the plaintiffs claimed to be co- sharers in the suit land, the only remedy available to them was to seek partition of the suit land and that they were not entitled to the relief of injunction claimed by them, dismissed the suit of the plaintiffs vide JITENDER 2014.10.17 14:59 I attest to the accuracy and integrity of this document RSA No.289 of 1986 -:4:- judgment and decree dated 03.08.1982. However, the appeal preferred by the plaintiffs was allowed by learned Additional District Judge, Faridkot vide judgment and decree dated 21.12.1985 and the judgment and decree passed by learned trial Court was set aside. Accordingly, defendant Jangir Singh was restrained from raising any further construction over the suit land without getting the same partitioned.
6. Feeling aggrieved by impugned judgment and decree of learned Additional District Judge, Faridkot, defendant Jangir Singh came up with the present appeal.
7. The submissions made by Mr. Harminder Singh, Advocate for the appellant and Mr. Vinod Kataria, Advocate for the respondents have been considered.
8. Needless to say that the plaintiffs can succeed only on the strength of his own case and can take no advantage of the weakness, if any, in the case of the defendant. The onus is always squarely on the plaintiffs to prove the facts pleaded by him. In the case in hand, the plaintiffs pleaded three main facts, (i) that the suit land was part of Shamlat Patti of village Jhandiana Sharki, Tehsil Moga, (ii) that the Shamlat Patti was partitioned by the Collector, Moga vide order dated 23.05.1982; and (iii) that during the partition, the suit land was allotted to Ghania Ka Thola.
A perusal of the record reveals that no substantive and reliable evidence was led by the plaintiffs to establish any of the said three facts. The land was said to be comprised in Khasra No.4 and was described as "Tukra" portion No.501. PW1 Jasbir Singh, Patwari of the area Jhandiana JITENDER 2014.10.17 14:59 I attest to the accuracy and integrity of this document RSA No.289 of 1986 -:5:- Sharki, was examined by the plaintiffs. He deposed that the suit land is situated within the Lal Lakir and is not entered in the revenue record. In case the suit land had no mention in the revenue record, it was for the plaintiffs to prove on what basis they alleged that the suit land bears Khasra No.4 and "Tukra" portion no.501.
As regard partition of the Shamlat Patti of village Jhandiana Sharki, PW3 Inder Singh (plaintiff No.3) tendered in evidence Ex.P1 said to be partition order dated 23.05.1982 which is in Urdu and its translation was never filed. It was for the plaintiffs to connect the suit land with the land described in Ex.P1 which was alleged to have been partitioned vide order dated 23.05.1982. No document/evidence was produced in that direction.
9. Even if it is assumed for the sake of arguments that the Shamlat Patti of village Jhandiana Sharki, Tehsil Moga was partitioned vide order Ex.P1, yet the plaintiffs were required to produce the relevant documents to establish that the suit land was the land allotted to Ghania Singh or his sons Dayal Singh etc. during the partition proceedings. Since the partition was alleged to have taken place 100 years ago, the record which could link the suit land with the land mentioned in Ex.P1 and could prove allotment of the same to Ghania Ka Thola, was certainly material piece of evidence which was withheld by the plaintiffs for the reasons best known to them. It can only be said that in absence of the relevant record, it is neither proved that the suit land was part of Shamlat Patti of village Jhandiana Sharki, Tehsil Moga nor it is proved that the Shamlat Patti was partitioned and the suit land was allotted to Ghania Ka Thola i.e. Dayal JITENDER 2014.10.17 14:59 I attest to the accuracy and integrity of this document RSA No.289 of 1986 -:6:- Singh etc. sons of Ghania Singh.
10. Taking a step further if at all the suit land was allotted to Dayal Singh etc. sons of Ghania Singh during partition proceedings of Shamlat Patti of village Jhandiana Sharki, yet admittedly according to the plaintiffs they alongwith Nand Singh, Mewa Singh, Kehar Singh and Sardara Singh were co-sharers in the suit land. Defendant-Jangir Singh purchased the share of Nand Singh and Mewa Singh etc., meaning thereby that stepping into the shoes of his vendors Jangir Singh became a co-sharer in the suit land. It is the case of the plaintiffs that the suit land has not been partitioned till date. The settled principle of law is that every co-sharer has a right on every inch of the suit land and therefore a co-sharer has no right to claim an injunction against all other co-sharer in respect of the joint holding. The only remedy available is to get the joint holding partitioned. Accordingly, instead of filing a suit for permanent injunction the remedy available to the plaintiffs was to get the suit land partitioned in due process of law.
11. The matter does not end here. Admittedly, during pendency of the suit, one Shri Om Parkash Gupta, Advocate was appointed as a Local Commission by the learned trial Court and was directed to visit the spot and report about the factual position existing at the spot. He stepped into the witness box as PW5 and proved his report Ex.PW5/A and the rough site plan Ex.PW5/D prepared by him. According to the report of the Local Commission Ex.PW5/A, he visited the spot on 27.04.1981 and found some construction already in existence on a portion of the suit land as was shown by him in the site plan Ex.PW5/D prepared by him. The remaining suit land JITENDER 2014.10.17 14:59 I attest to the accuracy and integrity of this document RSA No.289 of 1986 -:7:- was said to be lying vacant. He added that the construction on a portion of the suit land was reported to be of defendant Jangir Singh. Both the Courts below consistently accepted the factum of existence of construction of the defendant on a portion of the suit land. In other words, admittedly the defendant is in exclusive possession of a portion of the suit land. Being in exclusive possession, he is legally entitled to protection of his possession until the joint land is partitioned. The plaintiffs on the basis of their claim of being co-sharers cannot restrain him from using the portion of the joint land in his possession in the manner he likes. The only remedy which the plaintiffs have is to seek partition of the suit land. The amount being spent by the defendant in raising construction on a portion of the land in his exclusive possession is at his own risk. When the plaintiffs have an equally efficacious remedy available to them as provided under Section 41 of the Specific Relief Act, their suit for a permanent prohibitory injunction against the defendant is not maintainable.
In 2006(2) Civil Court Cases 106, M/s DCM Shriram Consolidated Ltd. Vs. Jai Singh, this Court held that co-sharer in exclusive possession of joint property for sufficient long time can raise construction.
12. In my considered opinion, it was improper for the learned first appellant Court to have reversed the finding of learned trial Court and restrain the defendant from raising construction on the portion of suit land in his exclusive possession. If that order is left to sustain, the matter would never end. It was the plaintiffs who had a grievance against raising of JITENDER 2014.10.17 14:59 I attest to the accuracy and integrity of this document RSA No.289 of 1986 -:8:- construction by the defendant, therefore, it was for them to have resorted to the remedy available to them under the law and that was to seek partition of the suit land before appropriate forum and their suit for injunction was not maintainable.
13. For the reasons recorded above, the instant appeal succeeds. The impugned judgment and decree dated 21.12.1985 passed by learned Additional District Judge, Faridkot is set aside and the judgment and decree dated 03.08.1982 passed by the learned trial Court dismissing the suit of the plaintiffs is restored and upheld.
(SNEH PRASHAR) JUDGE September 30, 2014.
jitender JITENDER 2014.10.17 14:59 I attest to the accuracy and integrity of this document