Punjab-Haryana High Court
Nirmal Singh And Others vs Surjit Singh And Others on 25 March, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
RSA No.882 of 2014 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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RSA No.882 of 2014 (O&M)
Date of Decision: 25.03.2014
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Nirmal Singh and others
. . . .Appellants
Versus
Surjit Singh and others
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.D.S. Gurna, Advocate,
for the appellants.
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RAKESH KUMAR JAIN, J.
The plaintiffs are in appeal against the judgment and decree of both the Courts below. The plaintiffs claims to have purchased the suit land from Resham Kaur wife of late Sohan Singh on 28.4.2000. The mutation of purchase of the property in dispute was sanctioned and their names have been incorporated in the jamabandi for the year 2004-2005 but the defendant, who had no concern with the suit land, claims to be a co-sharer and threatened to dispossess the plaintiffs, hence, the suit is filed.
In the written statement, it is pleaded by the defendant that he along with plaintiffs and other persons are co-owners in joint possession which is evident from the RSA No.882 of 2014 -2- jamabandi. After issues were framed, the plaintiffs examined Devi Parkash as PW1, Plaintiff No.1 appeared as PW2 and tendered some documents. It is argued by the plaintiffs that they are in exclusive possession over 3 kanals of land purchased from Resham Kaur vide sale deed dated 28.4.2000 (Ex.P1) whereas the sale deed Ex.P2 relied upon by the defendant, would show that they had purchased 7 marlas of land out of the total land showing the specific boundaries and has no concern with the suit land purchased out of different khasra numbers, which has been purchased out of khasra No.222/12(3-0) by the plaintiffs from Resham Kaur.
On the other hand, it is the case of the defendant that he has purchased the land measuring 7 marlas out of the suit land and even from the jamabandi Ex.D1 it is clear that plaintiffs are co-sharers in the suit land along with defendant. The trial Court made the following observation before dismissing the suit: -
"From the above discussed evidence, I am of the considered opinion that plaintiffs have failed to prove that they are in exclusive possession of the suit property. In fact, the plaintiffs have not come to the court with clean hands and they have suppressed material fact that the defendant had become a co-sharer in the suit land by way of sale deed Ex.D2 which is dated 19.12.2007 and RSA No.882 of 2014 -3- the present suit has been filed by the plaintiffs on 25.6.2008 but they have not mentioned about the said fact. Further, perusal of the sale deed relied upon by the plaintiffs Ex.P1 shows that they have purchased 07 kanals of land being 60/403 share out of the total land measuring 20K-3M comprised in khasra No.23//27(0-12), 225/6(0-9), 299/1(0-2), 222/12(3-0), 10//20(8-0), 12/2(3-2), 9//24/2(4-18) bearing kitta No.7 Khata No.735/918, 736/920 from Resham Kaur. It shows that Resham Kaur has sold 03 marlas of land from the above said Khasra numbers and it is also evident that she was not in exclusive possession of the suit land. Therefore, no question arises regarding the exclusive possession of the plaintiffs over the suit land when their vendor was not in exclusive possession of the same. Similarly, perusal of the sale deed of defendant Ex.D2 dated 19.12.2007 shows that he has purchased 07 marlas of land being 1/12th share out of 4K-3M out of khasra No.23//27(0-12), 225/6(0-9), 22/12(3-0), 299(0-2) from khata No.748/930. Hence it is evident that the defendant has also purchased some portion out of khasra No.222/12(3-0) out of which the plaintiffs are claiming their exclusive possession. Therefore, the defendant RSA No.882 of 2014 -4- has become a co-sharer in the suit land along with the plaintiffs and various other co-sharers. It is also pertinent to mention here that the plaintiffs have not placed on record any revenue record to show their exclusive possession. Rather, it is defendant who has placed on record copy of jamabandi Ex.D1 in which it is clearly depicted that there are number of co-sharers in the suit land apart from the defendant and the plaintiffs. Hence adverse inference is liable to be drawn against the plaintiffs. The entire suit land is still joint as per jamabandi Ex.D1. No doubt, a co-sharer is entitled to injunction against other co-sharer provided he is in exclusive possession. In the present suit, it is clearly proved that the plaintiffs are not in exclusive possession of the suit land. Infact, PW1 Devi Parkash in his cross-examination has admitted that the property in dispute has not been partitioned and is still joint. Similarly, plaintiff Nirmal Singh himself while appearing as PW2 in his cross examination has stated that he was not aware as to whether the suit land was partitioned amongst the co-sharers and he has not seen the revenue record of the entire khata."RSA No.882 of 2014 -5-
Aggrieved against the judgment and decree of the trial Court, the plaintiffs filed appeal before the lower Appellate Court, which was also dismissed with the following observations: -
"In the light of the above discussed copy of jamabandi Ex.D1 and cross- examination of PW1 and PW2, it is concluded that the khatta, in question is still joint since the same has not yet been partitioned amongst the co- owners. As the appellants/plaintiffs as well as the respondent/defendant have purchased their properties vide their respective sale deeds from one and the same joint khata, so they all are co- owners in the said joint khata. So far as the legal proposition in this regard is concerned, no co-owner can claim exclusive possession of the property which he has purchased in joint khata unless he proves his exclusive possession of the same. In the case in hand the appellants/plaintiffs have failed to prove their exclusive possession over the suit land which they have allegedly purchased vide sale deed Ex.P1. Regarding the above said legal proposition, ld. Counsel for both the parties have relied upon case law as laid down by our Hon'ble High Court in M/s Orient Craft Infrastructure Ltd. vs. Smt. Subhadra & Ors. 2011(1) RSA No.882 of 2014 -6- CCC 323. In this case law, it has been laid down by Hon'ble High Court in a very clear term that a co-owner can transfer his individual share, but no possession can be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the court. Vendee from the co-owner shall be entitled for possession through partition only. So, the principle laid down in this case law supports the plea of the present respondent/defendant and not of the present appellants/plaintiffs.
The, ld. Counsel for the respondent/defendant in support of her plea with regard to the possession of the co-sharer in joint khatta has cited another authority of our Hon'ble High Court as laid down in Karam Singh & Anr. vs. Lakhbir Kaur & Ors., 2011(3) CCC 162. In this case law, it has been laid down that a co-sharer can seek relief of injunction against other co- sharers when such co-sharer is in exclusive possession of the exclusion of other co-sharers. However, when possession of all co-sharers is joint, relief of injunction cannot be sought by either of the co-sharers and the only relief which is available to the co-sharer is to seek partition by metes and bounds.RSA No.882 of 2014 -7-
So far as the plea of the
appellants/plaintiffs that they have
constructed their residential house on the property in dispute and are residing therein, is concerned, the same is held to be not tenable being beyond the pleadings because the appellants/plaintiffs have not taken any such plea in their plaint regarding construction of their kotha or a house on the property in dispute.
Then, ld. Counsel for the
appellants/plaintiffs in order to
establish his case, has drawn the attention of this court towards the cross-examination of DW1 Surjit Singh, defendant wherein he has stated that the sale deed Ex.D1 is correct one. The plaintiffs have constructed a kotha in part of the suit land and, whereas the remaining is lying vacant. But a party is not to make out his case on the basis of the weakness of the evidence of the adverse party. A party who himself/herself has approached the court for the relief, is legally duty bound to bring on the record sufficient evidence to prove his/her stand as the case may be.
Then, in para no.6 of the grounds of appeal, it is pleaded that it is settled proposition of law that a purchaser from the co-sharer has got no right to RSA No.882 of 2014 -8- take possession of any specific area as only remedy available to such purchaser like respondent/defendant is to approach the competent court for partition of the land. But, it is to note that the said principle is to apply to the case of the appellants/plaintiffs also and not to the present respondent/defendant alone.
Learned counsel for the appellants has argued that the defendant could not have disturbed the settled possession of the plaintiffs even if he is accepted to be a co-sharer. He has referred to a judgment of this Court rendered in the case of "Ram Chander Vs. Bhim Singh and others" 2008(3) RCR (Civil) 685 and referred to its paragraph 17 in which it has been held that "where a co-owner is in possession of separate parcels under the arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of other except by filing a suit for partition".
Learned counsel for the appellants has miserably failed to point out from the pleadings and evidence that there has been an arrangement between the co-sharers on the basis of which plaintiffs are claiming themselves to be in exclusive possession. In the absence thereof, the plaintiffs cannot claim exclusive possession in order to seek a restrain RSA No.882 of 2014 -9- order from the Court against the defendant, who is admittedly a co-sharer.
No other point has been urged.
In view of the aforesaid reasoning, I do not find any merit in the present appeal and as such the same is hereby dismissed.
(RAKESH KUMAR JAIN) 25.03.2014 JUDGE Vivek Pahwa Vivek 2014.03.31 13:56 I attest to the accuracy and integrity of this document