Regular Second Appeal No. 2457 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2457 of 2009 Date of decision : September 14, 2010 State of Punjab and others ....Appellants versus Om Parkash and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Vivek Chauhan, AAG, Punjab for the appellants Mr. Vipin Mahajan, Advocate, for respondent no. 1 L.N. Mittal, J. (Oral) Defendants no. 2 to 4 have filed the instant second appeal. Suit was filed by Om Parkash respondent no. 1 against Gram Panchayat respondent no. 2 (defendant no. 1) and against appellants i.e. State of Punjab, Secretary Welfare Department and District Welfare Officer. The plaintiff alleged that he purchased 1 kanal land with specific boundaries out of khasra no. 372/232 and 3 kanals land with specific boundaries out of khasra no. 373/232 Min. from Madan Lal co-sharer vide sale deed dated 23.1.1998 and is owner in possession thereof. The plaintiff accordingly sought declaration that he is owner in possession of the aforesaid two plots measuring 1 kanal and 3 kanals respectively and defendants have no right, title or interest therein. The plaintiff also sought permanent injunction Regular Second Appeal No. 2457 of 2009 -2- restraining defendants from interfering in possession of the plaintiff over the said plots and from digging manure pits therein and from allotting the same to residents of the village and from changing nature thereof. Defendants no. 2 to 4 contested the suit. They did not claim any right, title or interest in khasra no. 372/232. However, defendants no. 2 to 4 alleged that they have purchased 8 kanals 15 marlas land out of khasra no. 373/232 from Darshna Rani co-sharer vide sale deed dated 27.4.1992 and defendants no. 2 to 4 are owners in possession of the said land. Plaintiff is not in physical possession of the suit land and therefore, question of dispossessing him does not arise. Various other pleas were also raised. Learned Civil Judge (Junior Division), Pathankot vide judgment and decree dated 30.10.2002 decreed the plaintiff's suit to the extent that plaintiff is joint owner of the land measuring 1 kanal in khasra no. 372/232 and joint owner of the land measuring 3 kanals in khasra no. 373/232. However, no injunction was granted by the trial court in favour of the plaintiff. First appeal preferred by defendants no. 2 to 4 has been dismissed by learned Additional District Judge (Adhoc), Fast Track Court, Gurdaspur vide judgment and decree dated 30.3.2009. Feeling aggrieved, defendants no. 2 to 4 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants contended that appellants being prior purchasers in time have acquired valid title over 8 kanals 15 marlas purchased by them. On the other hand, learned counsel for plaintiff- Regular Second Appeal No. 2457 of 2009 -3- respondent no. 1 contended that plaintiff has purchased 3 kanals land from the share of Madan Lal who was earlier a co-sharer in khasra no. 373/232 and total area of said khasra number is more than 70 kanals. It is also contended that plaintiff is in possession of 3 kanals land with specific boundaries as mentioned in the plaint. I have carefully considered the rival contentions. At the outset it has to be noticed that there is no dispute regarding plot measuring 1 kanal out of khasra no. 372/232. The dispute is regarding land measuring 3 kanals out of khasra no. 373/232. Defendants no. 2 to 4 have purchased 8 kanals 15 marlas land of said khasra number from Darshna Rani co-sharer whereas plaintiff purchased 3 kanals land of this khasra number from Madan Lal co-sharer. Consequently, both the parties have become co- sharers to the extent of land respectively purchased by them from the previous co-sharers. The trial court, therefore, rightly decreed the suit of the plaintiff to this extent. However, defendants no. 2 to 4 un-necessarily preferred the first appeal and thereby created complications. Lower appellate court erroneously observed in its judgment that the trial court has rightly restrained the defendants from interfering in peaceful possession of the plaintiff-respondent no. 1 over the suit property purchased by him vide sale deed dated 23.1.1998. However, no such injunction was granted by the trial court and aforesaid observation by the lower appellate court is erroneous being factually incorrect and therefore, the said observation is set aside. The plaintiff did not file any appeal against the judgment and decree of the trial court and so the same attained finality qua plaintiff-respondent Regular Second Appeal No. 2457 of 2009 -4- no. 1. However, the trial court rightly granted relief to the plaintiff to the extent that he is joint owner to the extent of land measuring 1 kanal of khasra no. 372/232 and joint owner to the extent of 3 kanals land in khasra no. 373/232. The said finding does not suffer from any infirmity because the plaintiff's vendor was co-sharer in the said khasra numbers and the sale is not in excess of the share of the plaintiff's vendor Madan Lal. For the reasons aforesaid, the instant second appeal is disposed of by setting aside the factually incorrect observation of the lower appellate court as indicated hereinbefore whereas decree of the trial court is affirmed. ( L.N. Mittal ) September 14, 2010 Judge 'dalbir'