RSA No.1751 of 2008 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.1751 of 2008 Date of Decision: 16.10.2008 **** Mangal Singh ….Appellant(s) Vs. Shamshad Masih and others …. Respondent(s) **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Simran Chahal, Advocate for the appellant. None for the respondent(s). **** RAKESH KUMAR JAIN, J. The plaintiff is in second appeal against the judgment and decree passed by both the Courts below, whereby, his suit for permanent injunction has been dismissed. The plaintiff filed the present suit claiming himself to be the owner in possession of land measuring 4 kanals 18 marlas comprised in Khewat No.34, Khatoni No.65, Rect. No.2 Killa No.6, as per jamabandi for the year 1998-99 situated at Village Mankaur Singh, H.B. No.356, Tehsil and District Gurdaspur. The case set up by the plaintiff is that he alongwith his two brothers is the owner to the extent of 3/4 share in joint Khewat No.34. It is averred that suit land was earlier in cultivating possession of Bachan Singh, brother of the plaintiff as shown in the jamabandi for the year 1993-94. The suit land fell to the share of the plaintiff in family arrangement amongst the three brothers. A tubewell connection was installed in the said land in the year 1995 of three horse power bearing connection No. ITI/51 in the name of Raghbir Singh, which came in possession of plaintiff in year 1997. It is pleaded that the plaintiff was in possession of this RSA No.1751 of 2008 - 2 - tubewell as owner and same is being used by him. On 13.5.1999 the defendants in connivance with the officials of the Sub Registrar, Gurdaspur got two sale deeds executed from Rattan Singh, brother of the plaintiff, who was mentally ill and was incompetent to execute any such document. The defendants in connivance with the Halqa Patwari got the Khasra Girdawari changed in their names in Sauni 1999 without any notice and against the procedure. It has further been alleged that Rattan Singh who sold the land to the defendants never came into possession of the suit land. Therefore, the plaintiff had to file a suit for permanent injunction since the defendants were threatening to dispossess him from the suit land forcibly on the basis of the said sale deeds. In the written statement, it was alleged that plaintiff with his brothers was co-sharer in the suit land but the suit land had fallen to the share of Rattan Singh who was in possession of the suit land. It is denied that the defendants in connivance with the revenue officials got two sale deeds executed in their favour from Rattan Singh. It was denied that Rattan Singh was mentally ill. It was rather claimed that the plaintiff was not in possession of the suit land. Both the Courts below on appreciation of the evidence led by the parties, particularly from the revenue record pertaining to the land in dispute i.e. Jamabandi for the year 1993-94, Ex.P-3 and Jamabandi for the year 1998-99 found that the property in dispute was owned by Mangal Singh, Bachan Singh and Rattan Singh sons of Inder Singh to the extent of 3/4 share each alongwith Joginder Kaur. It is the admitted case of the plaintiff as well as the defendants that partition by way of family settlement took place between the parties. The plaintiff has alleged that in that family partition, the land in dispute fell to his share and entry to that effect has been made in Khasra Girdawari for Hari, 1998 Ex.P-4 whereas, the case of the defendants is that the property in dispute fell to the share of Rattan Singh who in his sound disposing state of mind sold it by way of two registered sale deeds Ex.D-3 and Ex.D-4 to the defendants. Mutation has already been sanctioned in their names. RSA No.1751 of 2008 - 3 - The Courts below have also found that the plaintiff has failed to produce and examine Bachan Singh and Rattan Singh and only on the basis of a stray entry in Khasra Girdawari of Hari, 1998, he was not held to be in exclusive possession of the property in dispute. The Courts below have also found from Jamabandi for the year 1998-99 Ex.D-1 and Khasra Girdawari from 1999 onwards Ex.D-2 that the defendants are owners in possession of the suit property. It was also found that after purchasing the property in dispute from a co-sharer Rattan Singh the defendant had also become co-sharers of the property in dispute and have acquired possession which is evident from the revenue record Ex.D-1 and Ex.D-2, therefore, injunction to a co-sharer against the other co-sharer could not be granted. Apart from the above, DW-2 has categorically stated that the defendants are in possession having constructed a Church in the property in dispute. The witness has not been cross- examined on this point. In view of “Jaswinder Singh & others Vs. Kartar Singh & other” 2004 (3) CCC 48 and “Rajwinder Parshad deceased through LR’s vs. Darshana Devi” 2001(3) CCC 622, in the absence of cross examination of a witness on a point in examination-in-chief, the statement on that point shall have to be considered to be true. Learned counsel for the appellant could neither point out any error in the judgment and decree passed by both the Courts below nor could raise any question of law. No evidence has been referred to in order to prove that Rattan Singh was mentally unfit and thus was incompetent to execute the sale deeds in favour of the defendants. In view of the finding of fact recorded by both the Courts below that the plaintiff is neither the owner nor in possession of the suit property and the fact that no question of law much less substantial is involved, I do not find any merit in this appeal and the same is hereby dismissed in liminie. (RAKESH KUMAR JAIN) 16.10.2008 JUDGE vivek