R.S.A.No. 2510 of 2005 {1} In the High Court of Punjab and Haryana at Chandigarh Date of Decision:August 12, 2009 R.S.A.No. 2510 of 2005 Amrik Singh and another ---Appellants versus Ajaib Singh and others ---Respondents R.S.A.No. 2502 of 2005 Jaswant Kaur and others ---Appellants versus Mohinder Singh and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. Sanjiv Gupta,Advocate, for the appellants Mr.S.S.Dhaliwal, Advocate, for the respondents. *** SABINA J. This order shall dispose of R.S.A.No. 2510 of 2005 and R.S.A.No. 2502 of 2005 as these have arisen out of one judgment and R.S.A.No. 2510 of 2005 {2} decree. Plaintiffs –Ajaib Singh and others had filed a Civil Suit No. 257 dated 2.8.1996 and plaintiffs – Mohinder Singh and others had filed a Civil Suit No. 263 dated 7.8.1996 for declaration. Civil Judge ( Junior Division), Nabha vide judgments and decrees dated 24.10.2000 decreed the suits of the plaintiffs. Aggrieved by the same, defendants preferred appeals and the same were allowed by Additional District Judge (Ad hoc), Patiala vide judgment and decree dated 19.4.2005 Hence, the present appeals by the defendants. The facts of the case as noticed by the learned Additional District Judge( Ad hoc), in paras of its judgment read as under:- “2. According to the version disclosed in Civil Suit No. 263 dt. 7.8.96 filed by Mohinder Singh etc. who are descendants of Attra being son and grand son of Attra. Said Mohinder Singh and Jaswant Kaur are joint owner of ¼ share and Ajaib Singh, Tehal Singh and Naib Singh are joint owner of ¼ share and Amrik Singh and Baljit Singh are joint owner of ¼ share of the suit land fully described in the head note of the plaint at village Baniwal The. Nabha about which they have sought declaration which was decreed. 3. According to the version of successful plaintiff Mohinder Singh etc. who are respondent in this appeal and are desendants of Attra being son and grand son. They claim co- sharer ship in this suit land. Plaintiff No. 2 to 3 are owner of ¼ share amd defendamt No. 2 and 3 are owner of ¼ share om the suit land and plaintiff Mohinder Singh and defendant No. 1 R.S.A.No. 2510 of 2005 {3} Jaswant Kaur are owner of ¼ share and no partition of the suit land had taken place between the parties and Khewat is still joint. The plaintiffs Mohinder Singh etc. filed the partition application before AC Ist Grade, Nabha qua the suit land and defendant Jaswant Singh etc. raised question on title in the said partition application alleging that it has been partitioned and AC Ist Grade Nabha rejected the said application of the plaintiffs illegally. The defendants were asked to admit the suit and accordingly a suit for declaratrion was filed by the successful plaintiff Mohinder Singh son of Attra and his sons Ajaib Singh, Tehal Singh and Naib Singh grand sons of Attra. 4. The above suit was contested by Jaswant Kaur wd of Ujjagar Singh, Baljit Singh, Amrik Singh sons of Ujjagar Singh who are now appellants in this appeal and they denied co sharer ship and denied the ownership of the plaintiff about ¼ share etc. They affirmed the partition and in fact in the said week of May, 1975 the land was partitioned by entering into oral family settlement which was acted upon by delivery of possession of the respective land which fell to the share of the party and then on June 1972 memo of partition was executed. Said Attra who was father of Mohinder Singh plaintiff and father of Ujjagar Singh of village Ganiwal died on 10.11.82 who was husband of defendant No. 1 and father of defendant No. 2 and 3 and parties are Jat Sikh by caste and they constituted joint Hindu family and suit land was property of Joint Hindu Family. In that Joint Hindu Family plaintiff No. 2, R.S.A.No. 2510 of 2005 {4} 3 and 4 were represented by their father Mohinder Singh plaintiff No. 1 and defendants were represented by Ujjagar Singh son of Attra who was husband of defendant No. 1 and IN May 1992 with the concurrence of the defendant and at the instance of Attra. There was family settlement partition (Oral) at village Ganiwal and suit land was denied and partition was acted upon and after 3 June, 1972 memo of partition was executed which was duly signed by Ujjager Singh @ Jagtar Singh and thumb marked by Mohinder Singh plaintiff No. 1 and photo copy of the said memo of family settlement has been relied upon and in that family settlement the said Ujjgar Singh and defendants were allotted the following land:- i)Towards the side of Surat Ram, Singh Singh from phirni upto the next column of Bag. ii)Two columns from canal up to the land of Sadhu Singh iii)The remaining land of Surianwala is to be ½ of the parties, after completing 45 bighas of land to the plaintiffs which consists of two columns from canal up to the land of Babu Singh and from Tibba Dasrani up to the lands of Jangir Singh and Babu Singh. iv)10 bighas of land adjacent to the land of defendants, situated beyond the canal, after the death of the said Attra, who was allotted 20 bighas of land for his life time. v)45 bighas of land of Tibba Gosianiwala was R.S.A.No. 2510 of 2005 {5} confirmed to be the sole ownership of the defendants and the said Ujjagar Singh alias Jaggar Singh as they redeemed the land and were subrogated as mortgagees and the plaintiffs did not contribute or paid any amount of the redemption to the plaintiff or to the said Ujjagar Singh. The defendants being the heirs and legal representatives of the said Ujjagar Singh alias Jaggar Singh became the owners in possession of the land of the said Ujjagar Singh alias Jaggar Singh. The above said land of the defendants is represented by Khewat No. 130 Khatauni No. 240 Kh. Nos. 581/1 (0-14), 892 Min (1-0) wherein the defendants have made the construction of their houses, Khatauni No. 241 Kh. No. 581(6-5), 602(7-0), 605 (1-0), 624(6-5), 625/2(3-3), 629/2 (2-0), 630/2(3-3), 631 (8-17) khatauni 242 Kh. 581 (6-5), 583/2 (1-14). 586/2(1-14), 587/2 (5-7), 588(6-5), 591 (7-10), 592 (6-5), 593(6-5), 594/2(4-14), 599/2 (4-16), 600(6-5), 601(6-5), 313 (5-13), 314/1(208), 342/1(0-13), situated at vil. Ghaniawal The. Nabha as per jamabandi for the year 1991-92 with a passage of two Karams through kh. Nos. 615, 616 up to Pahi which is now in the shape of metalled road. The abadis represented by khewat No. 130 Khatauni No. 240 kh. No. 613/1(0-14), 902(0-7) was kept as joint of the R.S.A.No. 2510 of 2005 {6} parties, and in the above said family settlement/partition (Oral) the plaintiffs were allotted the following lands:- i)Towards the side of Pirkhanna, Kartara and Sadhu up to the Bagwala column which proceeds from canal towards its south, ii)Two columns from canal up to the land of Babu Singh, iii)The land from the lands of Jangir Singh and Babu Singh including Tibba Dasraniwala which measures 45 bighas, iv)Excess land along with his land by the side of Baner from the land of Babu Singh up to canal v)10 bighas of land adjacent to the land of plaintiffs which came to them after the death of the said Attra, who was allotted 20 bighas of land during his life time and after his death the parties to be the owners in possession of ½ and ½ each adjacent to their respective lands which is represented by Khewat No. 130 khatauni No. 242 Kh. Nos. 582/2(7-15), 603 (5-5), 605 Min (5-5), 604(6-5), 606/1(0-8), 611/2 (0-11), 612, 6-5), 613/2(5-13), 614(7-10), 615 (7-10), 615(7-10), 616(6-5), 617(6-5), 618/1(0-8), 612/2(2-0), 622/2(5-0), 623/2 (5-3), 633(6-13), R.S.A.No. 2510 of 2005 {7} 632(7-3), 634(2-5), 830/1(1-3), 840(6-5), 843/1 (3-15)” 5. On the basis of above memo of family settlement the parties were allotted the above land and khewat of the parties was not joint as it was already divided and plaintiffs had filed the application for partition of the suit land which was rejected holding that suit land had already partitioned so there is cause of action and suit was not filed within limitation. 6. Large number of legal objections were raised that suit is not maintainable and the plaintiffs are estopped by their own act and conduct, defendants have matured their rights of ownership by way of adverse possession and defendants have spent more than 5 lakh on the improvement of the land by digging bore etc., making construction of the room. And on these grounds suit was contested by Jaswant Kaur etc.” On the pleadings of the parties, trial court framed the following issues in Civil suit No. 257 of 2.8.1996:- (1)Whether the plaintiffs are joint owners to the extent of ½ share in the suit property? OPP (2)Whether this court has got no territorial jurisdiction? OPD (3)Whether the defendants are in possession of the suit property since 5.12.1965 and are owners by way of adverse possession? OPD (4)Relief. Following additional issues were also framed vide order dated 15.1.1999:- R.S.A.No. 2510 of 2005 {8} I Whether Attra Singh son of Ganga Ram mortgaged with possession of the suit land in favour of Sunder Singh? OPD II Whether Attra mortgaged with possession part of the suit in favour of Khan Singh and others? OPD III Whether Khan Singh and other mortgaged with possession of the suit land in favour of Gurdial Singh? OPD VI Whether Ujjagar Singh redeemed the suit land from Sunder Singh and Gurdial Singh and Ujjagar Singh and defendants became the owner of the suit land on the principle of subrogation? OPD V. Whether the defendants effected improvements in the suit land? If so, its effect OPD On the pleadings of the parties, trial court framed the following issues in Civil suit No. 263 of 7.8.1996:- “(1)Whether the plaintiffs are co-sharer in the suit land? OPP (2)Whether the suit is not maintainable in the present form? OPD (3)Whether the defendants are owners and in possession of the suit land by adverse possession? OPD (4)Relief following additional issues were framed on 21.1.999 as under:- 3A Whether the suit land was partitioned in the month of May 1972 and memo of partition was executed on 3rd June, 72, by parties Ujjagar Singh the concurrence of R.S.A.No. 2510 of 2005 {9} Attra as stated in para No. 1 of the written statement and para No. 1 of the additional objection of written statement? OPD 3B. Whether the defendants along with Ujjagar Singh effected improvement upon the land in their possession by making construction of house levelling the land, digging bores etc. as stated in para No. 5 of the additional objections? OPD 3C Whether the plaintiffs are estopped by their acts and conduct from filing the suit? OPD Following issues were framed by the trial court in civil suit No. After hearing learned counsel for the parties, I am of the opinion that these appeals deserve to be dismissed. Learned Additional District Judge (Ad hoc) after perusing the revenue record has held that Baljit Singh, Amrik Singh along with Ujjagar Singh, Tehal Singh and Naib Singh were co-sharers in the suit property. Reliance was placed on the copy of the jamabandi for the year 1976-77. Possession of Baljit Singh was as a co-sharer and not as a exclusive owner of the suit property. Reliance was also placed on other revenue record placed on the file while arriving at the said conclusion. It has further been observed that mutation Ex. P-1 showed that Attra was the previous owner Thereafter, his sons Ujjagar Singh, Mohinder Singh got the land in equal shares. Plaintiffs failed to establish that the land had been partitioned by meets and bounds and the co-sharers were in possession of the land on the basis of finality of partition proceedings. Both the courts below, after appreciating the evidence on R.S.A.No. 2510 of 2005 {10} record have arrived at a finding of fact that the plaintiffs had failed to establish that they were in possession of the suit property on the basis of finality of partition proceedings. The revenue record did not reflect any partition proceedings having been effected between the parties. Any writing regarding the partition if not reflected in the revenue record cannot be taken into consideration. In these circumstances, courts below had rightly ignored the writing Mark “A” dated 3.6.1972. Learned Additional District Judge has observed that the writing was not a registered document and hence could not be relied upon. It was not a memo of partition regarding past transactions. It has been held by this Court in the case Sant Ram Nagina Ram vs. Deva Ram Nagina Ram and others AIR 1961 PB 528 as under:- “(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 the other as, when a co-owner openly asserts his own title and R.S.A.No. 2510 of 2005 {11} 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 to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition. (8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. (9) Where a portion of the joint property is by common consent of the co-owners reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered. Case law reviewed.” Thus, a co-sharer in possession of a joint property is in possession of the same on behalf of all the co-sharers. Thus, the plaintiffs who were co-sharers in the suit land were entitled to get a decree for joint R.S.A.No. 2510 of 2005 {12} possession in the suit land. No substantial question of law arises in these appeals. Accordingly, these appeals are dismissed. (SABINA) JUDGE August 12, 2009 PARAMJIT