Punjab-Haryana High Court
Kartar Singh And Others vs Dhian Singh And Others on 1 March, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.5001 of 2011 (O&M) #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
RSA No.5001 of 2011(O&M)
Date of Decision: 1.3.2012
Kartar Singh and others
....Appellants
Versus
Dhian Singh and others
....Respondents
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. D.K. Gupta, Advocate for the appellants. JASWANT SINGH, J C.M.No.1577-C of 2012 Application is allowed.
Documents are taken on record.
RSA No.5001 of 2011 Plaintiff-appellants have filed the present regular second appeal for setting aside the impugned judgment and decree dated 4.8.2011 passed by the learned District Judge, Gurdaspur whereby an appeal filed by them against the judgment and decree dated 12.5.2009 passed by the learned Civil Judge (Jr. Division), Pathankot dismissing their suit , has been dismissed.
Brief facts of the case are that the plaintiff-appellant filed a Civil Suit No.463 dated 21.12.2004 for permanent injunction restraining the defendants-respondents from their peaceful and exclusive possession in the land as described in the head note of the RSA No.5001 of 2011 (O&M) #2# plaint except by way of partition. Suit was opposed by the defendants- respondents and ultimately dismissed by the learned trial Court. An appeal was preferred but the same was also dismissed.
Learned counsel for the appellant has argued that both the courts have gravely erred while dismissing the suit of the plaintiffs in view of the fact that the possession of the plaintiff-appellant is established from the revenue record and the same has been admitted by the defendants-respondents. It is further argued that the findings of both the courts below to the effect that the suit land is in joint possession is erroneous, in view of the settled preposition of law that a co-sharer in exclusive possession is entitled to retain his/her possession, even if the land is joint till dispossessed by way of partition.
After hearing learned counsel for the appellants and perusing the paper book, this Court does not find any merit in the present appeal and the same deserves dismissal.
It is the case of the plaintiffs-appellants that they are in exclusive possession of the suit land and prior thereto, their father, namely, Sant Singh along with the defendants-respondents as well as other co-owners were in joint possession of the total land measuring 369 Kanal. It is further alleged that during partition, the land in dispute came to the share of their father and after his death, the same devolved upon the plaintiffs being his sons and as such mutated in their names. It is further alleged that civil suit No.200 dated 1.8.1995 filed by RSA No.5001 of 2011 (O&M) #3# defendants and others was decreed vide judgment and decree dated 10.1.2000 by the learned Civil Judge (Jr. Division), Pathankot and order of partition dated 1.9.1993 passed by the learned Assistant Collector, Ist Grade and affirmed by the learned Collector vide order dated 10.7.1995 were declared as null and void. All the co-owners were held to be co-sharers of the land measuring 369 kanal. It is further alleged that although the order of partition were set aside but the co-sharers, who were delivered separate possession in pursuance of order of partition, remained in exclusive possession of their respective parcels of the land.
On the contrary, defendants-respondents specifically disputed that the plaintiffs-appellants are in exclusive possession of the suit land. It was also denied that Sant Singh entered into exclusive possession of the land in dispute. On the basis of pleadings, learned trial Court framed three issues and issue No.1 being material is reproduced hereunder:
"Whether the plaintiffs are in exclusive possession of the suit property and defendants threatened to interfere with the same?OPP"
A perusal of paper book reveals that the plaintiffs- appellants have produced on record copy of the jamabandi for the year 2000-01 (Ex.P.1) as well as khasra girdawari from Sauni-2001 to Hari- 2004 (Ex.P.2) to prove their possession on the suit land in which the name of their father namely Sant Singh is recorded but these entries RSA No.5001 of 2011 (O&M) #4# were recorded on the basis of order of partition passed by the revenue authorities, which admittedly have already been set aside vide judgment and decree dated 10.1.2000 (Ex.Dx and Dy) passed by the learned Civil Judge (Jr. Division), Pathankot. Nothing has been brought to the notice of this Hon'ble Court that the judgment and decree dated 10.1.2000 has been set aside by a Court of competent jurisdiction till date. Still further, Ramesh Singh-PW1 (plaintiff- appellant No.3) has categorically admitted that on the basis of judgment dated 10.1.2000, the mutation sanctioned on the basis of order of partition was reversed and set aside and the plaintiffs along with defendants as well as other co-sharers were recorded as co-sharer regarding the total land of the Khewat i.e 369 kanals including the land in dispute.
A perusal of judgment and decree dated 10.1.2000 clearly reveals that present defendants-respondents were the plaintiffs in that suit and father of the present plaintiffs-appellants, namely, Sant Singh was defendant No.1 and the operative part of the decree (Ex.DY) reads as under:
"It is ordered that the plaintiffs succeed, consequently decree for declaration to the effect that the plaintiffs and defendants are co-sharers in the land measuring 369 kanals bearing khewat No.25, khatoni No.75, khasra No.321/3, 330, 433/4, 447,448,449,450,452,460,462,463,464,469,446/2/7/2, 446/2/8, 446/2/9/2, khatoni No.76, khasra No.329 min, khatoni No.77, khasra no.329 min, khewat No.78, khasra RSA No.5001 of 2011 (O&M) #5# No.50, khewat No.79, khasra No.246/2/7/1, 446/2/9/1, total measuring 369 k 0 marlas situated in village Hara Tika Chakkar, H.B.No.394, Tehsil Pathankot, District Gurdaspur and the order of the Assistant Collector 1st Grade dated 1.9.93 and that of collector in appeal dated 10.7.95 are null and void vide which defendant No.1 was allotted land measuring 123 kanals instead of 118 kanals 9 marlas 6 sarsahies and the parties to these proceedings are entitled to joint possession along with decree for joint possession of the suit land."
A perusal of the relevant portion of the decree (Ex.DY) leaves no manner of doubt that all the co-sharers are in joint possession of the total land measuring 369 kanal and as such both the courts have rightly come to the conclusion that all the parties are entitled to joint possession and a co-sharer cannot claim injunction against co-owner of the joint land till it is partitioned.
In the present case, admittedly till date no partition has been finalized and as such the claim of the plaintiff-appellants that they are in exclusive possession of the land in dispute has rightly been declined by both the courts below.
No substantial question of law is involved in the present appeal for adjudication under Section 100 CPC.
Dismissed.
March 01,2012 ( JASWANT SINGH ) manoj JUDGE