R.S.A.No. 4200 of 2005 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4200 of 2005 Date of decision: 4.9. 2009 Jaswant Singh ......Appellant Versus Mohinder Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Arun Jain, Sr.Advocate with Mr.Sunil Sharma, Advocate, for the appellant. Mr.Vijay S.Kajla, Advocate, for Mr. Ashish Aggarwal, Advocate, for the respondents. **** SABINA, J. Plaintiff Jawant Singh filed a suit for declaration, which was dismissed by the Additional Civil Judge (Sr.Divn.) Karnal vide judgment and decree dated 24.12.2002. In appeal, the said judgment and decree were upheld by the Additional District Judge, Karnal vide judgment and decree dated 17.8.2005. Hence, the R.S.A.No. 4200 of 2005 (O&M) 2 present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 5 of its judgment, are as under:- “2. Plaintiff Jaswant Singh brought the civil suit for declaration that he is joint owner in possession of the land to the extent of 154/630 share out of the land 167 kanals 18 marlas. Land measuring 22 kanals 10 marlas 1/5 share of Kartar Singh which was given to Smt.Kartar Kaur for her maintenance out of 112 kanals 10 marlas is undivided and in illegal possession od defendants No.1 and 2. Land measuring 55 kanals 6 marlas was purchased with the aid of joint family property is also undivided and is in the illegal possession of defendants No.1 and 2. Total undivided land 78 kanals is undivided. The plaintiff prayed for a decree for restoration of 22 kanals 10 marlas of land including the house, tubewell and tractor etc. as per family settlement dated 3.8.1986. 3. The plaintiff and defendants No. 1 to 3 are the real brothers whereas defendants No.4 and 5 are their sisters. As per assertion of the plaintiff, the plaintiff and defendants No.1 to 3 are co-parceners with their father Kartar Singh. After the death of Kartar Singh, 1/5th interest of Kartar Singh in the co-parcenary devolved R.S.A.No. 4200 of 2005 (O&M) 3 on Kartar Singh himself, four sons and his wife Kartar Kaur by notional partition, and each is entitled to 1/30 share by succession. It is alleged that father of the parties Kartar Singh got 1/4th share of the land i.e. 67 kanals 10 marlas out of 270 kanals from his father Lal Singh by means of family settlement/civil court decree dated 15.1.1970 passed in civil suit titled as Kartar Singh and others versus Lal Singh . Lal Singh also kept 1/4th share with him which later on devolved on his legal heirs after his death and so Kartar Singh became the owner in possession of the land measuring 89 kanals 17 marlas including 78 kanals 1 marla received by him in the aforesaid decree. Land measuring 8 kanals comprised in rectangle No.107/6 was purchased from Balwinder Singh son Jagat Singh in the year 1972 and again another land measuring 7 kanals 8 marlas comprised in rectangle No. 112 Killa No.8/1 was also purchased in the year 1977 from Balwinder Singh by said Kartar Singh. Land measuring 89 kanals 17 marlas was also mortgaged by Kartar Singh by means of different mortgage deeds No.5231, 5232 and 5230 dated 22.12.1983 for Rs.30,000/- each totalling Rs.90,000/- as consideration. Said land was mortgaged at the instance of Surinder Singh, Mohinder R.S.A.No. 4200 of 2005 (O&M) 4 Singh, by said Kartar Singh. Further land measuring 25 kanals 11 marlas was purchased vide sale deed 5459/1 dated 4.1.1984, detailed in para No.4 of the plaint. Surinder Singh defendant No.2 also pre-empted the land measuring 29 kanals 15 marlas i.e. 592/5376 share of the agricultural land measuring 268 kanals 16 marlas, detailed in para No.5 of the plaint. Entire litigation was financed by Kartar Singh. Mohinder Singh defendant purchased the land measuring 7 kanals 7 marlas comprised in khewat No.95 detailed in para No.6 of the plaint with the income of the joint family vide registered sale deed/mutation along with tubewell which is still in the name of Kartar Singh. Entire total land measuring 167 kanals 18 marlas was acquiring by the joint family of which Kartar Singh was the karta during his life time and for all intents and purposes the entire land is the joint family co-parcenary property and is to be divided as per the provisions of Sections 6 and 8 of the Successions Act. It is alleged that on 3.8.1986 family arrangement was effected amongst the plaintiff and defendant Nos.1 to 3 and Smt.Kartar Kaur in which the claim of the plaintiff was admitted by the parties. There is also a residential house constructed in the land in question which is also R.S.A.No. 4200 of 2005 (O&M) 5 alleged to be the co-parcenary property. It is alleged that the plaintiff was in possession of 22 kanals 10 marlas as per family arrangement but a petition for partition was filed by Kartar Kaur defendant along with other co-sharers and vide order dated 11.19.1991 the revenue officer directed the parties to get their shares ascertained as the question of title was involved. It is alleged that even the defendants have dispossessed the plaintiff from one room of the house and since the defendants have refused to admit the claim of the plaintiff, so the plaintiff has to bring the suit. 4. Defendants No.1 and 2 in their joint written statement resisted the claim of the plaintiff and inter alia pleaded that the suit filed by the plaintiff is false and is an abuse of the process of court. The plaintiff has claimed a sum of Rs.60,000/- as liquidated damages, so he be asked to pay the court fee amount. The house, tubewell and the tractor were with defendants No. 1 and 2 and the same was their property purchased in the name of defendant No.1 and Kartar Singh sold his tractor mark Zetor 1125 during his very life time, house and tubewell are the joint property of defendants No. 1 and 2. 5. It is further alleged that the father of the R.S.A.No. 4200 of 2005 (O&M) 6 parties had been given some land by his father during his life time. The defendants denied that the land measuring 67 kanals 10 marlas out of 270 kanals i.e. 1/4th share of the land measuring 270 kanals had been given by Lal Singh and grand father of the parties by means of civil court decree dated 15.1.1970 and the defendants even denied that grand father of the parties had kept 1/4th share of the land with him which had later on devolved on his legal heirs after his death. The defendants also denied that Kartar Singh became the owner in possession of the land measuring 89 kanals 17 marlas. It is alleged that the land measuring 14-1/2 acres was standing in the name of their father and the same had developed on the parties to the suit and their deceased mother simultaneously and equally. After the death of their mother the land which form 1/7th share of the entire land had been mutated in the name of the plaintiff and the defendants in equal shares. The defendants admitted that their deceased father purchased land measuring 8 kanals from Balvinder Singh before his death and also purchased land measuring 7 kanals 8 marlas from Balvinder Singh. It is alleged that the land was mortgaged by their father to secure the loan obtained from the bank. Land R.S.A.No. 4200 of 2005 (O&M) 7 meausring 25 kanals 11 marlas was purchased vide registered sale deed dated 4.1.1984 in equal shares from Sawaran Singh by contribution by the defendants and their father and regularly instalments were being paid by the defendants. Defendant No.2 preempted the land measuring 29 kanals 15 marlas out of his own personal funds and denied that litigation was financed out of the income of joint Hindu Family coparcenary property. It is alleged that the property in the hands of Surinder Singh was self acquired property who paid the decretal amount in the pre-emption suit. It is alleged that the property in the hands of Surinder Singh was self acquired property who paid the decretal amount in the pre-emption suit. It is alleged that Kartar Singh deceased did not possess any joint Hindu Family property and there was no alleged Joint Hindu Family constituted by him and his sons including the plaintiff. During the life time of Kartar Singh, deceased, the plaintiff as well as defendants No. 1,2 and 3 had started living separately and none of the sons of Kartar Singh had anything to do with one another. Mohinder Singh defendant purchased land measuring 7 kanals 10 marlas out of his personal funds and said property is his self acquired property. The defendants denied that R.S.A.No. 4200 of 2005 (O&M) 8 the land measuring 167 kanals 5 marlas was the Joint Hindu Family co-parcenary property and Kartar Singh was the karta of the family. The defendants denied all the allegations of the plaintiff and prayed for dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff and defendants No. 1 to 3 are entitled to joint possession being co-sharer in the property in dispute detailed and described in para No.1 of the plaint? OPP 2. Whether the plaintiff is entitled to a decree for declaration to the suit property along with possession thereof as prayed for? OPP 3. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 4. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 5. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for declaration that he was owner in joint possession of the agricultural land in dispute. However, plaintiff did not step into the witness box in support of his R.S.A.No. 4200 of 2005 (O&M) 9 case nor he examined any witness to establish his case. The plaintiff produced on record the documentary evidence. Learned trial Court in its judgment has observed that the jamabandis pertaining to the suit land did not reveal that the plaintiff was owner of 1/4th share of the disputed property. The plaintiff and defendants had inherited the suit property left by their father Kartar Singh. Therefore, it could not be said that the land purchased by the defendants vide sale deeds was purchased from joint family funds. It was for the plaintiff to establish that the defendants had purchased the property out of the joint family funds. The plaintiff has failed to establish that the suit property in the hands of Kartar Singh was ancestral property. Rather the suit property had come to Kartar Singh by way of a Civil Court decree dated 15.1.1970. Hence, it was self acquired property of Kartar Singh. As per mutation Ex.P-10, land of Lal Singh was inherited by Kartar Singh and Surjit Singh and his sons on the basis of registered Will dated 15.1.1970. Hence, the said property also became self acquired property of Kartar Singh. The plaintiff also failed to establish that he had contributed any funds towards the purchase of the property, which were in the names of defendants. The plaintiff, who had inherited the property of Kartar Singh along with defendants, is a co-sharer in the said land and it is a settled proposition of law that a co-sharer cannot seek any injunction against other co-sharer. The only remedy available to such a co-sharer is to seek partition of the joint property by metes and bounds. Hence, R.S.A.No. 4200 of 2005 (O&M) 10 both the Courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 04, 2009 anita