RSA No.1419 of 1986 - 1 - ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1419 of 1986 Date of decision:04.07.2011. Tej Kaur (deceased) through her Lrs. and others ...Appellants Versus Baldev Parshad and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. K.S.Sidhu, Senior Advocate, with Mr. N.S.Sidhu, Advocate, for the appellants. Mr. Sukant Gupta, Advocate, for respondent No.3. ***** Rakesh Kumar Jain, J. This is defendants' appeal in which the substantial question of law involved is as to “whether prohibitory injunction can be granted to a person who himself is not in actual physical possession”. In brief, the plaintiffs filed a suit for declaration that plaintiff No.1 (Baldev Parshad) is the owner in possession of land measuring 17 Kanals 01 Marla comprised in Rectangle No.28 Killa Nos.16(8-0), 17/1(1-0), 24/3(0- 14), 25(7-7), Khatauni No.21, Khewat No.1, situated in village Kamagar alias Machhiwara, Tehsil and District Ferozepur and plaintiff No.2 (Ajay Kumar) is the mortgagee with possession under plaintiff No.1 and that the sale deed executed by defendant No.5 in favour of defendant Nos.1 to 4 on 05.06.1981 in respect of the land in dispute is ineffective on the rights of the plaintiffs, is subject to the right of adjustment at the time of partition of the suit land and a consequential relief was sought to restrain defendant Nos.1 to 5 from interfering in their possession. It was alleged by the plaintiffs that the land in dispute is jointly owned by plaintiff No.1 and defendant No.5. Plaintiff No.1 is RSA No.1419 of 1986 - 2 - ****** in established possession as a co-sharer since long who had mortgaged it with possession with Tara Singh S/o Sham Singh vide mortgage deed dated 08.03.1961 and Tara Singh had transferred his mortgagee rights to plaintiff No.2 who is now in possession of the suit land as mortgagee of plaintiff No.1. On 05.06.1981, defendant No.5 executed a sale deed in respect of the suit land in favour of defendant Nos.1 to 4 though he had no right to do so as he had already sold more than his share in the joint land. Thus, the said sale is void, illegal, ineffective on the rights of the plaintiffs and subject to the right of adjustment at the time of partition and the defendants have no right to interfere with possession of plaintiff No.2 over the suit land as mortgagee of plaintiff No.1. Defendant Nos.1 to 4 and defendant No.5 filed their separate written statements. Defendant Nos.1 to 4 had alleged that plaintiff No.1 along with his other children were the owners of 5000 Kanals of land in village Kamagar. He had transferred the land to various persons by way of sale, gift and mortgage etc., which has been reproduced in detail in the written statement, and regarding possession it was alleged that plaintiff No.2 is related to plaintiff No.1 who has never been in possession of the suit land as a mortgagee. They claimed their possession over the suit land. In the written statement filed by defendant No.5, the various transfers made by plaintiff No.1 were mentioned and regarding possession it was averred that neither plaintiff No.1 nor plaintiff No.2 is in possession of the suit land. Plaintiffs filed replication to the written statement filed by defendant No.5. On the pleadings of the parties, following issues were framed: - “1. Whether the plaintiff No.1 is the owner of the suit land?OPP. 2. Whether the impugned sale by defendant No.5 in favour of defendants No.1 to 4 is void being in excess of the share of the vendor in joint property as well as being for specific khasra numbers?OPP. 3. Whether the said sale is subject to the right of the adjustment at the time of the partition of the RSA No.1419 of 1986 - 3 - ****** suit property along with other lands of the various co-sharers of the vendor?OPP. 4. Relief.” The learned Trial Court, vide its judgment and decree dated 06.10.1983, decreed the suit of the plaintiffs observing that “on the basis of the decision on various issues, the suit of the plaintiffs succeeds and is hereby decreed for a declaration that 17 kanals 01 Marla of land which is the subject matter of this suit as well as transaction of sale dated 05.06.1981, would be subject to a final adjustment amongst various co-sharer at the time of any future partition of the entire joint khata”. However, this judgment and decree was set aside in appeal on 15.04.1985 and the suit was remanded for fresh trial after framing an additional issue to the effect that “whether the plaintiffs are in possession of the suit land and are entitled to the relief of injunction as prayed?OPP”. The parties led some more evidence after the framing of the additional issue. The learned Trial Court, while deciding issues Nos.1 and 2, had observed that “the parties made a statement at the final stage to the effect that issue No.2 may be treated as redundant while issue No.1 may be decided declaring plaintiff No.1 and defendants No.5 being co-sharers in the suit property along with the other land in the joint kehwat. Hence, both these issues stands disposed of accordingly”. Insofar as the issue No.3 is concerned, it was observed that “after the decision on issue No.1 declaring plaintiff No.1 and defendant No.5 to be co-sharers in the suit property, it is a necessary corollary that the land in question is subject to right of adjustment at the time of partition of property amongst various co-sharers. There was no contest between the parties at the final stage at least on this point too. Hence, this issue stands decided accordingly in favour of the plaintiffs. It was the additional issue which took prominence in this suit to find out as to who is in possession of the suit property for the purpose of injunction. Plaintiff No.1 had alleged plaintiff No.2 is in possession of the suit property as a mortgagee, but at the same time it has come on record that plaintiff No.1 had mortgaged the suit property with Tara Singh vide mortgage deed Ex.P5 in respect of which a mutation (Ex.P3) was also sanctioned but it was redeemed on 08.03.1967 RSA No.1419 of 1986 - 4 - ****** which is reflected in the jamabandi. Thereafter, he sold the mortgagee rights of Tara Singh to plaintiff No.2 vide sale deed Ex.P6 on 29.07.1977 and since then Ajay Kumar (plaintiff No.2) is in possession of the suit property as a mortgagee. In this regard, the learned First Appellate Court has observed that “consequently the said sale of mortgagee rights by Tara Singh in favour of Ajay Kumar seems to be a paper transaction so far as the factum of actual possession of the land is concerned”. It was rather observed that as per Khasra Girdawari Ex.P8, the possession on the suit property is of Parjinder Singh son of Tara Singh from Khariff 1977 to Rabi 1981 and in the subsequent copy of jamabandi Ex.P9, similar entry has come in the record and in the year 1982 change of cultivation took place in favour of vendee/defendant No.4 on 21.10.1982 subsequent to the filing of the present suit on 23.04.1982. The learned Trial Court did not take into account the entry in favour of defendant Nos.1 to 4 pursuant to the sale deed executed by defendant No.5 which is reflected in the revenue record during the pendency of the suit and had rather observed that “as such I am of the considered view that neither the vendee defendants nor mortgagee Ajay Kumar plaintiff No.2 were in actual possession of the suit property at the time of commencement of the suit”. “Instead the cultivating possession of the land in suit was with Parjinder Singh and Sukhdev Singh. But Ajay Kumar plaintiff No.2 being the mortgagee of the suit property, the possession of Parjinder Singh etc. is indeed under him though this fact is not indicated in the revenue record”. The learned Trial Court, thus, partly decreed the suit to the effect that plaintiff No.1 and defendant No.5 are the co-sharers of the suit land which was held under the possession of Ajay Kumar plaintiff No.2 as mortgagee through Parjinder Singh and Sukhdev Singh and the transaction of sale in favour of defendant Nos.1 to 4 was made subject to final adjustment amongst the various co-sharers at the time of final partition. It was also ordered that till then the defendants would be restrained permanently from interfering in any manner in the said possession of Ajay Kumar plaintiff No.2 through Parjinder Singh etc. except in due course of law. Aggrieved against the judgment and decree of the learned Trial Court, defendants Nos.1 to 4 came up in appeal in which the learned First RSA No.1419 of 1986 - 5 - ****** Appellate Court had observed that “the only point which required determination was as to whether the plaintiffs are in possession of the same”. The learned First Appellate Court has categorically observed that “in this context, the plaintiffs' case is that Ajay Kumar mortgagee has been in possession of the suit land. This fact is not established on the record because the revenue entries are otherwise”. It was also observed that “it is also a fact that Ajay Kumar resides at Delhi. So, khasra girdawari Ex.P8 establishes the possession of Parjinder Singh etc. on the suit property from Khariff 1977 to Rabi 1981. The learned First Appellate Court observed that the defendants/appellants are not in possession of the suit property and maintained the decree of the learned Trial Court. Aggrieved against the judgment and decree of the Courts below, the defendants have filed this appeal which was admitted on 20.05.1986 and execution of the decree was stayed. In this appeal, the question of law framed by learned counsel for the appellants is as to whether the learned Court below have committed a serious error of law in granting injunction to plaintiff No.2 though he himself is not found to be in actual physical possession nor he had pleaded in the suit that he is in possession of the suit property through Parjinder Singh and Sukhdev Singh sons of Tara Singh. Plaintiff No.1 had redeemed the suit land and sold the mortgagee rights to plaintiff No.2. In this manner, the possession of Parjinder Singh and Sukhdev Singh are of unauthorized persons who have not come forward in the present suit to seek injunction against the defendants on the ground that they are interfering in their possession, otherwise then in due course of law. Learned counsel for the appellant has relied upon various decision in the cases of Sri Thimmaiah v. Shabira & Ors., 2008 AIR Supreme Court 1275, Ramji Rai and another v. Jagdish Mallah (Dead) through L.Rs. And another, AIR Supreme Court 900, Sant Lal v. Johri Lal, 2004(1) Civil Court Cases 210 and Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. And others, 2008 AIR Supreme Court 2033 to contend that in order to claim decree for permanent injunction, the plaintiff has to establish that he is in possession. RSA No.1419 of 1986 - 6 - ****** In reply, learned counsel for the respondents has argued that the suit property is still joint between the parties and it has rightly been held by the learned Courts below that the sale deed executed by defendant No.5 in favour of the appellants shall be subject to final partition between the parties. He has further submitted that plaintiff No.1 has executed mortgage deed in favour of plaintiff No.2 and as such, he is in possession through Parjinder Singh and Sukhdev Singh sons of the earlier mortgagee in possession and since the defendants have not found to be in possession by the Courts below despite the fact that they have claimed it on the basis of entry in Khasra Girdawari which has been effected during the pendency of the suit, the learned Courts below have granted injunction in favour of plaintiff No.2 restraining the defendants from interfering in his peaceful possession through Parjinder Singh and Sukhdev Singh. I have heard both the learned counsel for the parties and perused the available record . The facts are not much in dispute inasmuch as the suit property is a joint property. Both the Courts below have only dealt with the additional issue with regard to the permanent injunction which was to be proved by the plaintiffs. The learned Trial Court has observed that mortgage by plaintiff No.1 in favour of plaintiff No.2 is only a paper transaction. The learned First Appellate Court has observed that plaintiff No.2 is not in possession as there is no revenue entry in his favour. The concurrent finding has been recorded that possession over the suit property is of Parjinder Singh and Sukhdev Singh sons of Tara Singh who are neither plaintiffs before the Court nor there is any pleading by plaintiff No.2 that he had handed over possession to those persons or they are in possession with his consent and disturbance of their possession would be deemed to be the disturbance of possession of plaintiff No.2. In the absence of any such pleading or the case set up by plaintiff No.2 in his plaint, learned Courts below have committed the serious error of law by granting injunction to plaintiff No.2 who is not found to be in actual physical possession of the sproperty in dispute. In Sri Thimmaiah's case (supra), the Supreme Court has held that in order to seek permanent injunction, the plaintiff has to RSA No.1419 of 1986 - 7 - ****** establish that he is in possession. In the case of Ramji Rai and another (supra), the Supreme Court has held that if the plaintiff is not found to be in possession in a suit for permanent injunction, the necessary orders which is to be passed by the Court is to dismiss the suit. In Sant Lal's case (supra), the plaintiff filed a suit for permanent injunction. They were proved to be owner but defendants were proved to be in possession on the date of filing of suit. The plaintiffs were neither held entitled to a decree for permanent injunction nor to a decree for possession as neither they pleaded nor proved that they have been dispossessed during the pendency of the suit. In Anathula Sudhakar's case (supra), it was held by the Supreme Court that in order to seek injunction, plaintiff has to establish that on the date of suit he was in lawful possession. It was also held that in the absence of pleadings, no amount of evidence or arguments can be looked into. Thus, from the resume of the aforesaid discussion, I have found that the Courts below have committed a patent error of law in decreeing the suit of plaintiff No.2 for permanent injunction inspite of the fact that neither plaintiff No.1 nor plaintiff No.2 were in actual physical possession of the suit property and the persons who were in actual physical possession have not applied to the Court for seeking injunction against the defendants, therefore, the Courts below could not have decreed the suit of the plaintiffs for restraining the defendants from interfering in their possession which is claimed by them through someone else who is not a party before the Court. Thus, the substantial question of law framed in the beginning of the judgment is answered in favour of the appellants and in view thereof, the present appeal is hereby allowed and the judgments and decrees of the Courts below are hereby set aside accordingly. No costs. July 04, 2011. (RAKESH KUMAR JAIN) vinod* JUDGE