Regular Second Appeal No.603 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.603 of 2011 Date of Decision:-14.7.2011 Manmohan Kaur ...Appellant Versus Davinder Pal Singh ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Bharat Bir Singh Sobti, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) As the Courts below duly recapitulated, discussed the pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same in this context. However, the crux of the facts, culminating in the commencement, relevant for deciding the instant appeal and emanating from the record, is that Manmohan Kaur widow of Dalip Singh appellant-plaintiff (for brevity “the plaintiff”), filed the suit for a decree of possession, with a consequential relief of permanent injunction, restraining Devinder Pal Singh son of Lal Singh respondent-defendant (for short “the defendant”), from raising any construction on and from alienating in any manner, the land in dispute, measuring 4 marlas, being 4/374th shares out of the total land measuring 18 kanals 14 marlas, comprised in Khewat Nos.317 & 318, Khatauni No.343 Khasra Nos.174//26 (18-14), situated within the revenue estate of village Karoran, Tehsil Kharar, District Ropar. 2. The case set up by the plaintiff, in brief in so far as relevant, was that she purchased the land measuring 17 marlas, by virtue of registered sale deed dated 26.5.1995 from the attorney of original owner Joginder Singh. The possession of the land was stated to have been delivered to her at the time of Regular Second Appeal No.603 of 2011 -2- execution of the sale deed. It was claimed that the defendant also purchased the land measuring 3 marlas from co-owner Angrez Singh, being 3/127th shares out of the land measuring 6 kanals 7 marlas, bearing Khasra No.174//18/2 (6-7), situated within the revenue estate of village Karoran, Tehsil Kharar, District Ropar. The plaintiff claimed that the defendant has forcibly constructed the foundation of disputed portion, in order to show his possession on the land in dispute, without any legal right. She (plaintiff) requested him not to raise the construction on the suit land, but in vain, which necessitated her to file the suit. 3. Levelling a variety of allegations and narrating the sequence of events, in all, according to the plaintiff that she has purchased the land measuring 17 marlas, being 4/374th share, by virtue of registered sale deed dated 26.5.1995 from the attorney of original owner Joginder Singh. Sequelly, the defendant has also purchased the land measuring 3 marlas, being 3/127th shares out of the land measuring 6 kanals 7 marlas from co-owner Angrez Singh, bearing Khasra No.174//18/2 (6-7), situated within the revenue estate of village Karoran, Tehsil Kharar, District Ropar, but the defendant has illegally constructed the foundation, in order to show his possession on the land in dispute, without any legal right. On the basis of aforesaid allegations, the plaintiff filed the suit for possession and permanent injunction against the defendant in the manner depicted hereinabove. 4. The defendant contested the suit and filed the written statement, inter-alia pleading certain additional objections of maintainability of the suit; estoppel, misjoinder and nonjoinder of necessary parties, cause of action and locus standi of the plaintiff. On merits, according to the defendant that plaintiff never came in possession of the suit property. Angrez Singh, Joginder Singh and Mohinder Singh sons of Karora Singh, were residing jointly at village Naya Gaon Karoran upto 1996 and the suit land were jointly owned and possessed by them. A family settlement was stated to have been taken place between them, in which, the land in dispute had fallen to the share of Angrez Singh, who alienated the same to Regular Second Appeal No.603 of 2011 -3- the defendant and possession was also delivered to him at the time of execution of the sale deed. It was explained that he (defendant) has rightly constructed his shed on his land in dispute in the month of August 1997. In all, the defendant claimed that he is owner and in possession and plaintiff has no right, title or interest in the property in dispute. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. 6. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether the plaintiff is entitled to possession as prayed for ?OPP 2. Whether the plaintiff is entitled for the permanent injunction as prayed for?OPP 3. Whether the suit of the plaintiff is bad for non-joinder of necessary parties?OPD 4. Relief. 7. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 8. The trial Court, after taking into consideration the entire material on record, decided issue Nos.1 and 2 against the plaintiff, while issue No.3 was adjudged against the defendant. 9. On ultimate analysis of the evidence on record and in view of findings on various issues, the trial Court dismissed the suit of the plaintiff, by way of impugned judgment and decree dated 15.1.2007. 10. Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, which was dismissed as well, by the Ist Appellate Court, through the medium of impugned judgment and decree dated 7.9.2010. 11. The appellant-plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present appeal. Regular Second Appeal No.603 of 2011 -4- That is how I am seized of the matter. 12. Having heard the learned counsel for the appellant, having gone through the record with his valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant appeal in this context. 13. Ex-facie the cosmetic argument of learned counsel that since the first appellate Court did not consider all the points involved in the appeal, so, its impugned judgment and decree are illegal, sans merit and the observations of Hon'ble Supreme Court in case B.V.Nagesh & Anr. v. H.V.Sreenivasa Murthy 2011(2) Apex Court Judgments 274 (SC), in which, it was observed that the whole case is open for re-hearing both on questions of fact and law before the first appellate Court and it was its duty to deal with all the issues and to discuss the evidence led by the parties, are not at all applicable to the facts of the present case. As is apparent from the record that the Ist appellate Court has duly reproduced all the issues/points raised in the appeal and discussed the evidence in detail and in right perspective and decided the real controversy between the parties involved in the appeal. 14. Sequelly, faced with the situation, the next contention of learned counsel that as the plaintiff is proved to be owner of the suit land, therefore, the Courts below ought to have passed the decree for possession in her favour, is again neither tenable nor the observations of this Court in case Ajmer Singh v. Dharam Singh (2006-2) PLR 25 are at all applicable to the present controversy, wherein, it was admitted in the sale deeds (Ex.D1 and Ex.D2) executed by Sumer Singh that the sale is of specific khasra numbers, with a stipulation that such Khasra numbers have fallen to the share of vendor in private partition. Both the co-sharers have got possession of equal area of land and that khasra numbers were separated after summoning Patwari and after all calculations. It was proved (therein) that with the assistance of revenue officials, the co-sharers have demarcated their separate parcels and were in cultivation thereof. They were in cultivating possession of Regular Second Appeal No.603 of 2011 -5- their respective portions of the land. There was a positive evidence of partition and after partition, their cultivation was separated for the last about 25 years and that both have planted sheesham trees to show the boundaries of their holdings. They moved the application dated 10.6.1975, regarding mutation of partition to the Consolidation Officer, who sent the same to the Assistant Consolidation Officer, who has further sent to the Kanungo and Kanungo sent the same to the Patwari. The mutual partition between the vendors for the last about 25 years was duly proved. 15. On the peculiar facts and in the special circumstances of that case, it was observed that the parties are proved to be in separate possession, prior to the sale in favour of the defendant, although their partition was not affirmed under section 123 of the Punjab Land Revenue Act, 1887 (hereinafter to be referred as “the Act”). Possibly, no one can dispute with regard to the aforesaid observations, but the same would not come to the rescue of the appellant-plaintiff in any manner. 16. As is evident from the record that earlier, Karora Singh was co- owner and in possession of the land. After his death, the property was inherited by his sons Angrez Singh, Joginder Singh and Mohinder Singh. The case set up by the plaintiff was that she purchased the land measuring 17 marlas, being 4/374th share from the attorney of original owner Joginder Singh, vide registered sale deed dated 26.5.1995 and the defendant also purchased the land measuring 3 marlas, being 3/127th shares from co-owner Angrez Sing, out of the land measuring 6 kanals 7 marlas bearing Khasra No.174//18/2 (6-7). On the contrary, according to the defendant that the land was mutually partitioned by their vendors before sale, which he miserably failed to prove. He purchased the share of Angrez Singh, he is in possession, has constructed the shed in it and plaintiff has got no right, title or interest in the property in dispute. Thus, it would be seen that the facts of the present case are neither intricate nor much disputed. 17. Above being the position on record, now the short and significant Regular Second Appeal No.603 of 2011 -6- question, though important that arises for determination in the appeal, is as to whether the plaintiff or the defendant are proved to be in exclusive possession of the suit property or not? 18. Having regard to the contentions of learned counsel for the appellant, to me, the answer must obviously be in the negative. As the parties to the lis have purchased their respective shares out of the joint land of the vendors, therefore, their possession over the suit land would be as a co-sharer and not exclusive as claimed by them. 19. What is not disputed here is that Karora Singh was the co-owner of the entire land. The plaintiff purchased the land measuring 17 marlas, being 4/374th share from the attorney of original owner Joginder Singh, vide registered sale deed dated 26.5.1995 and the defendant also purchased the land measuring 3 marlas, being 3/127th shares from co-owner Angrez Sing, out of the land measuring 6 kanals 7 marlas bearing Khasra No.174//18/2 (6-7). This is also so described in the jamabandis for the years 1991-92 and 1996-97 (Ex.P8 and Ex.P9) respectively, to which, presumption of truth is attached. The mere vague report (Ex.P1) of Kanungo, site plan (Ex.P2) and Index report (Ex.P3) is not sufficient to rebut the presumption of truth attached to the entries contained in the jamabandis (Ex.P8 and P9), particularly when Mehar Singh Field Kanungo, who prepared the report (Ex.P1), has admitted that no pacca points were affixed by him at the time of demarcation. Moreover, once the parties to the lis have purchased their respective shares out of joint property, then they cannot claim to be in exclusive possession of any particular portion of the suit property, unless and until, the joint land is legally partitioned between them. It will remain a joint property of the parties and plaintiff cannot claim exclusive possession of any specific portion. 20. Be that as it may, if any co-owner is in possession of any portion of the land, he can protect the same, unless and until, the joint land is duly partitioned in accordance with law. That means, if the plaintiff wants the possession of the suit Regular Second Appeal No.603 of 2011 -7- land, then she has to file a suit for partition of the joint land. In the absence of the same, her suit for possession is not maintainable. This matter is not res integra and is well settled. 21. An identical question came to be decided, in a celebrated judgment of Full Bench of this Court in case Bhartu Vs. Ram Sarup 1981 PLJ 204. Having considered the right and liability of a co-sharer, it was ruled that even the sale of a specific portion of land described by particular khasra numbers by a co-owner out of the joint khewat would be a sale of share out of the joint land. A co-owner has interest in the whole property and also in every parcel of it. It was also held that possession of joint property by one co-owner, is in the eye of law, would be possession of each co-sharer, unless the same is legally partitioned. The mere possession of all even if all but one are actually out of possession, the mere occupation of a larger portion or even of entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all and every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. If any co-owner intends to separate his portion, then, he can file a suit for partition and not otherwise. 22. Again, the Hon'ble Apex Court in case Jai Singh and others v. Gurmej Singh 2009 (1) RCR (Civil) 874 has recognized the following principles relating to the inter-se rights and liabilities of co-sharers :- (1)A co-owner has an interest in the whole property and also in every parcel of it. (2)Possession of joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession. (3)A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4)The above rule admits of an exception when there is ouster of a co- owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of Regular Second Appeal No.603 of 2011 -8- the other as, when a co-owner openly asserts his own title and denies, that of the other. (5)Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. (6)Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7)Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition. 23. As indicated earlier in the present suit, the plaintiff and defendant have only purchased their respective shares out of the joint land and they cannot claim their exclusive possession in any manner, unless they file the suit for partition to separate their shares in this relevant connection. In that eventuality, the property of the parties would remain a joint property and plaintiff cannot claim exclusive possession out of joint property without filing a suit for partition. The law laid down by Hon'ble Supreme Court in Jai Singh's case (supra) and the Full Bench of this Court in Bhartu's case (supra) “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. Therefore, the contrary submissions of learned counsel for the appellant “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 24. Moreover, the trial Court having scanned the entire material on record in the right perspective, has recorded a finding of fact that the land in dispute is a joint property of the co-owners and plaintiff has utterly failed to prove that she purchased the specific portion of land in dispute. On the contrary, it stands proved on record that she has purchased the land measuring 17 marlas, being 4/374th share from the attorney of owner owner Joginder Singh, by means of registered sale deed dated 26.5.1995, while defendant also purchased the land measuring 3 marlas from co-owner Angrez Singh, being 3/127th shares, out of the Regular Second Appeal No.603 of 2011 -9- land measuring 6 kanals 7 marlas bearing Khasra No.174//18/2 (6-7), situated within the revenue estate of village Karoran, Tehsil Kharar, District Ropar. Both the vendors are real brothers and were joint owners and in possession of the land in dispute alongwith other co-sharers prior to the indicated sale deeds. 25. Not only that, the Ist appellate Court has also upheld the decision of the trial Court, by way of impugned judgment dated 7.9.2010, which, in substance, is (para 10) as under:- “In the present case also Karora Singh was owner of the property in dispute. Angrej Singh, Mohinder Singh and Joginder Singh inherited the same after the death of Karora Singh. They are co-sharers in joint possession of the land inherited by them from Karora Singh. As per revenue record produced by the parties the land has not been partitioned as yet. As per copy of Jamabandi, all the co-sharers have sold their respective shares to different person. If any person is not in possession of the land purchased by him out of joint holding, he can get possession by filing suit for partition unless the land in joint holding is not partitioned by metes and bounds, as such the suit filed by the plaintiff for specific khasra number is not maintainable.” 26. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having analyzed the admissible evidence in relation to the legal position, the trial Court as well as the first Appellate Court has recorded the above- mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. 27. No other meaningful argument has been raised by the learned counsel for the appellant to assail the findings of the Courts below in this respect. Regular Second Appeal No.603 of 2011 -10- All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant, in this relevant direction, have already been duly considered and dealt with by the Courts below. 28. In this manner, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 29. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. 30. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 14.7.2011 Judge AS Whether to be referred to reporter?Yes/No