RSA No.4282 of 2009 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.4282 of 2009 (O&M) Date of decision: 10.12.2010 Onkar and others ..Appellants vs Vipin Kumar ....Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. Present: Mr.Ramneek Vasudeva, Advocate, for the appellants. Rakesh Kumar Garg,J.(Oral) This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for declaration that they were joint owners in possession of the suit land with consequential relief of permanent injunction restraining the appellants from alienating and interfering in their possession was decreed. As per the averments in the plaint plaintiff-respondent claimed that he along with respondents No. 2 and 3 were joint owners in possession of land measuring 15 marlas purchased by them from appellant No.1 vide registered sale deed dated 28.5.1977 for consideration of Rs.2000/- and since then they were in continuous physical possession over the suit land. However, taking benefit of some defect in the mutation, defendants No.1 and 2 sold the suit property to defendant No.3 vide two different sale deeds dated 25.4.1997. The said sale deeds were illegal, collusive and void and were not binding on upon the rights of the appellants. Hence this Suit. Upon notice, the appellants appeared and filed written statement raising various preliminary objections. It was further asserted that the alleged sale deed in favour of the plaintiff and proforma defendants was RSA No.4282 of 2009 2 a forged and fabricated document. Defendant No.3 filed a separate written statement submitting that he had purchased the suit property through registered sale deed dated 25.4.1997 for consideration and was in possession of the same as owner. On the basis of the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is entitled to the relief of declaration as prayed for ?OPP 2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ?OPP 3. Whether the suit of the plaintiff is not maintainable in the present form ? 4. Whether the plaintiff has no locus standi to file the present suit ?OPD 5. Whether the plaintiff has suppressed the material fact of the case from the Court ? OPD 6. Whether the suit is bad for non-joinder of necessary parties ? OPD 7. Relief. Both the courts below on appreciation of evidence recorded a finding that the sale deed Ex.P1 in favour of the plaintiff and proforma defendants was duly proved as the same was not even denied and vide the aforesaid sale deed, they became co-owner in the suit property and their possession was joint with the other co-owners and hence they were entitled to the decree. Still not satisfied, the defendants are before this Court challenging the judgment and decrees of the Courts below before this Court submitting that the following substantial questions of law arise in this appeal:- RSA No.4282 of 2009 3 1. Whether the learned Court below was justified in decreeing the suit filed by the respondent/plaintiff particularly when the respondent/plaintiff had failed to show its possession on the suit property ? 2. Whether the learned Courts below erred in decreeing the suit filed by the respondent/plaintiff which is absolutely barred by limitation/time barred ? 3. Whether the learned courts below were right in giving a finding with regard to that subsequent sale deed dated 25.4.1997 executed in favour of the appellant No.3 will have no effect on the rights of the parties particularly when no issue was framed by the learned lower Court challenging the said sale deed dated 25.4.1997 ? 4. Whether the learned Courts below were justified in decreeing the suit merely on the basis of execution of sale deed dated 28.5.1977 in favour of the respondent/plaintiff ? In support of his case, learned counsel for the appellants vehemently contended that mere suit for declaration filed by the plaintiff- respondent was not maintainable, as there was no evidence to show that the plaintiff-respondent was in possession of the suit property. Learned counsel further argued that the suit was hopelessly time barred and thus the substantial questions of law, as raised by the learned counsel for the appellants deserves to be answered in favour of the appellants and the judgment and decrees of the Courts below are liable to be set aside. I have heard the learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. It is useful to refer to the observations of the lower Appellate Court which reads as under:- “ The suit was filed for declaration by the respondent- plaintiff with regard to the suit property measuring 15 Marlas RSA No.4282 of 2009 4 i.e.15/117 share out of the total land. The declaration was claimed on the basis of sale deed Ex.P1. The said sale deed is executed by the present appellants in favour of Krishan Dev, Puran Chand and Vipan Kumar, respondents. The said sale deed is duly proved on file as per law and the same is not even denied. The contentions of learned counsel for the appellants that mere suit for declaration was not maintainable are devoid of any force as only 15/117 share was sold by the appellants in favour of the respondents, meaning thereby that the property was still joint between the respondents and the other owners. It is further mentioned in the said sale deed that the said property was sold by the appellants in favour of respondents for sale consideration and all the rights of ownership were purchased by the respondents vide this sale deed. Vide this sale deed, the respondents became co-owners in the suit property, their possession was joint with the other co-sharers and, as such there was no need to file or seek relief of possession also. The authority relied upon by learned counsel for the appellants reported as Ram Saran and another Vs. Smt.Ganga DeviA.I.R.1972 Supreme Court 2685 is not applicable to the facts of the present case as in that very case it was some other person who was in exclusive possession of the suit property, whereas in the present case the respondents are deemed to be in possession of the suit property as co-sharers. Similarly, the authority relied upon by learned counsel for the appellants reported as Ashok Bansal & others Vs. Gurdas and another 2002 (3) Civil Court Cases 288 (Punjab and Haryana) is not applicable to the facts of the present case as in that very case it was held by the Hon'ble Punjab and Haryana High Court that a co-owner not in possession of any part of the property cannot seek injunction against the other co-owner. However, in the present case relief of title is claimed by the respondents having become owners of the suit property on the basis of a registered document. Hence, the case law cited by learned counsel for the RSA No.4282 of 2009 5 appellants is not applicable to the facts of the present case. On the other hand, it is fully proved on file that the respondents became owners of the suit property by virtue of the sale deed Ex.P1 which was executed by the present appellants. The relief of declaration with regard to ownership qua this property thus was rightly granted by the learned trial Court. As the suit property was purchased by the respondents from appellants vide registered document legally, the respondents were entitled to the declaration regarding ownership. Hence, the findings of the learned trial Court on all the issues are neither erroneous nor illegal and do not deserve any interference. Hence the same are affirmed”. There is no dispute that appellant No.1 executed the sale deed Ex.P1 dated 28.5.1977 in favour of the respondents. It is also not in dispute that it has been recited in the aforesaid sale deed that the property in dispute was jointly held by the parties and only 15/117 share was sold by the appellants in favour of the respondents. Thus, vide this sale deed, the respondents became co-owner in the suit property and their possession being joint with the other co-sharers, there was no necessity to file or seek relief of possession, Since the plaintiff-respondent was in joint possession of the suit property he could have filed the suit when his rights were threatened. In view thereof, no substantial question of law arises in this appeal. No merit. Dismissed. ( Rakesh Kumar Garg) Judge December 10, 2010 rk RSA No.4282 of 2009 6