Regular Second Appeal No. 1350 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1350 of 2010 Date of decision : April 28, 2010 Satish Kumar and another ....Appellants versus Smt. Surinder Pal Kaur ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. JS Brar, Advocate, for the appellants Mr. Karanjit Singh, Advocate for Mr. AS Sivia, Advocate for the respondent-caveator L.N. Mittal, J. (Oral) This is second appeal by defendants. Suit was filed by respondent Surinder Pal Kaur against appellants Satish Kumar and Meena Jagga. The plaintiff claimed that she is owner of plots ABCD and CDEF as depicted in the site plan and various sale deeds by different persons were challenged in the suit. Possession of the aforesaid plots was also sought. It was alleged that the plaintiff purchased 2 kanals 18 marlas land from Gurbachan Kaur being suit plots out of khasra no. 1111 of which total area was 16 kanals 18 marlas, vide sale deed dated 18.10.1962. The plaintiff's claim is that after consolidation khasra nos. 975(3-11), 976(0-4), 978(0-8), 982(0-12) total measuring 4 Regular Second Appeal No. 1350 of 2010 -2- kanals 15 marlas were formed and mutation was sanctioned in favour of plaintiff regarding 47/95 share thereof measuring 47 marlas. Plaintiff however claimed possession of the suit plots out of khasra no. 975 only. The defendants admitted sale deed dated 18.10.1962 by Gurbachan Kaur in favour of plaintiff regarding 2 kanals 18 marlas land out of 16 kanals 18 marlas land of khasra no. 1111. Defendants also pleaded that said khasra no. 1111 was split into four khasra numbers i.e. 975(3-11), 976(0-4), 978(0-8), 982(0-12). Accordingly the plaintiff was shown to be having 47/95 share in the said khasra numbers. However, in khasra no. 975 measuring 3 kanals 11 marlas, the share of plaintiff came to 1 kanal 15 marlas only. The defendants purchased 21 marlas land from the plaintiff vide two sale deeds dated 31.1.2000 pertaining to specific portions. Various other pleas were also raised and averments of the plaintiff were controverted. Learned Civil Judge (Senior Division), Muktsar vide judgment and decree dated 4.3.2009 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been partly allowed by learned District Judge, Muktsar vide judgment and decree dated 1.2.2010 and the suit has been decreed declaring that plaintiff is joint owner of 26/95 share out of suit property and defendants are owners of 21/95 share out of the suit property and the plaintiff is entitled to joint possession thereof. It was also held that since defendants are in exclusive possession of the suit property and have already raised construction, the plaintiff is not entitled to permanent injunction prayed for. Suit for relief regarding permanent injunction stands dismissed. Feeling aggrieved the defendants have preferred the Regular Second Appeal No. 1350 of 2010 -3- instant appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that the plaintiff has been declared to be owner of 26/95 share in khasra no. 975 only whereas the plaintiff should have been declared to be owner of 26/95 share in khasra nos. 975, 976, 978 and 982 mentioned above. There is considerable force in the contention. Even learned counsel for the respondent could not controvert the same. It has to be noticed that the plaintiff had purchased 47 marlas land and therefore, her share was recorded to be 47/95 in 4 kanals 15 marlas land of all the aforesaid khasra numbers. Out of it, the plaintiff admittedly sold 21 marlas to the defendants who have therefore, become owners of 21/95 share in the land of all the aforesaid khasra numbers. On the other hand, if plaintiff is held to be owner of 26/95 share in khasra no. 975 only then her share would be reduced to less than 20 marlas. However, in fact the plaintiff is left with share of 26 marlas and the same would be 26/95 share of all the four khasra numbers namely 975, 976, 978, 982 and not of khasra no. 975 only. Judgment and decree of the lower appellate court is, therefore, required to be modified to this extent being erroneous. Even the plaintiff-respondent would stand to gain by the aforesaid modification. Learned counsel for the appellants also pointed out that the appellants have also purchased 21 marlas land from other vendors out of khasra no. 975. However, the said sale if any would enure for the benefit of the appellants to the extent that they would become joint owner of the Regular Second Appeal No. 1350 of 2010 -4- land to that extent because the land has not yet been partitioned. However, it may be clarified that the appellants are in possession of the specific portion of joint land as held by lower appellate court and therefore, relief of permanent injunction has been declined to the plaintiff-respondent. Consequently, plaintiff-respondent or any other co-sharer would be at liberty to seek partition of the joint land in accordance with law. For the reasons recorded hereinabove, this appeal is disposed of by modifying judgment and decree of the lower appellate court to the extent that the share of respondent-plaintiff shall be 26/95 in land of khasra nos. 975(3-11), 976(0-4), 978(0-8), 982(0-12) and the share of defendants therein shall be to the extent of 21/95 having been purchased from the plaintiff, in addition to any other share allegedly purchased by the appellants from other co-sharers, subject to observation and clarification made in the preceding paragraph. ( L.N. Mittal ) April 28, 2010 Judge 'dalbir'