R.S.A. No. 1327 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1327 of 2009 (O&M) Date of Decision : 25.3.2009 Santa Singh & another .......... Appellants Versus Kulwant Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Ashok Singla, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 15.1.2009 passed by the learned lower appellate Court vide which suit filed by the plaintiff for permanent and mandatory injunction stands decreed. The plaintiff brought a suit on the plea that he was in exclusive possession of Khasra No. 973 measuring 23K-16Ms and, therefore, was entitled to seek injunction against the defendant / appellant from interfering in the peaceful possession. The suit was based on the previous judgment and decree inter se between the parties wherein the Court had held the plaintiff / respondent to be in exclusive possession of Khasra No. 973 measuring 23K-16Ms of land. The suit was contested wherein the plea was taken that injunction suit was not competent as the plaintiff had admittedly sought R.S.A. No. 1327 of 2009 2 partition and also that he being not in possession was not entitled to injunction. Reliance for this purpose was placed on the revenue record wherein the defendants were shown in exclusive possession of the property in dispute. The learned trial Court dismissed the suit by observing that as in the latest jamabandi the defendants are shown to be in exclusive possession, therefore, the plaintiff was not entitled to seek injunction from enjoyment of the property by the appellants. In appeal the learned lower appellate Court reversed the findings recorded by the learned trial Court by relying upon the judgment and decree passed inter se between the parties which had attained finality. The learned counsel for the appellants contends that this appeal raises the following substantial questions of law for consideration by this Court :- 1. Whether a suit for permanent injunction by one co-sharer against other co-sharer is maintainable or could be decreed ? 2. Whether the suit filed by the plaintiff / respondent was barred under Section 41(h) of the Specific Relief Act ? 3. Whether the Courts below were justified in decreeing the suit in toto without discussing the question whether the plaintiff / respondent was entitled to mandatory injunction as claimed ? In support of the substantial questions of law the learned counsel for the appellants contends that the learned lower appellate Court R.S.A. No. 1327 of 2009 3 completely ignored the findings of the learned trial Court which were based on appreciation of evidence i.e. the revenue record showing the defendant / appellants to be in exclusive possession of the property in dispute. The learned counsel for the appellants also contends that as the parties were admittedly co-sharers, therefore, suit for injunction was not maintainable. Furthermore, the plaintiff / respondent had admitted filing of suit for partition, therefore, the suit for injunction was not competent as it was barred under Section 41(h) of the Specific Relief Act. The learned counsel for the appellants also contends that for maintaining a suit for injunction, it is the possession on the date of filing the suit, which is to be seen and once it was proved that the plaintiff / respondent was not in possession on the date of filing of the suit, the decree passed by the learned lower appellate Court cannot be sustained. In support of the contention raised the learned counsel for the appellant placed reliance on the judgment of this Court in the case of Mukhtiar Singh Vs. Tara Singh and another 2000(4) R.C.R. (Civil) 379 and Jai Karan Sharma Vs. Ram Kumar 2009(1) R.C.R. (Civil) 546 wherein this Court was pleased to lay down that a co-owner cannot seek injunction restraining the other co-owner from raising the construction as the remedy of the co-owner not in possession is to file a suit for partition. On consideration of the matter, I find no force in the contentions raised by the learned counsel for the appellants. It may be noticed that in the previous litigation inter se between the parties a positive finding was recorded that the plaintiff / respondent was in exclusive possession of Khasra No. 973 measuring 23K-16Ms and the said judgment R.S.A. No. 1327 of 2009 4 and decree has attained finality. The decree of the Court is to have preference over the revenue record as the presumption of truth attached to the entries in the jamabandi is rebuttable. In presence of the decree of the civil Court no reliance could have been placed on the jamabandi showing the defendant / appellants to be in possession of the property. It is also well settled that though co-owner cannot seek injunction restraining the other co-owner from enjoying the property in possession as the remedy of a co-owner not in possession is to file a suit for partition, however, when a co-owner is in established exclusive possession, he can always restrain the other co-owner from interfering in his possession. The remedy with party not in possession is to seek partition. In view of the earlier decree inter see between the parties the established possession of the plaintiff / respondent was proved on record, thus, he could protect his possession by decree of injunction. The substantial questions of law, on the facts and circumstances of the case, do not arise for consideration in this case. No merit. Dismissed. 25.3.2009 ( VINOD K. SHARMA ) 'sp' JUDGE