IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.291 of 2001. Date of decision: 04.07.2011. Sarup Chand Goswami … …Appellant Versus Smt.Kanta Devi … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. For the Respondents: Mr.Arvind Sharma, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the plaintiff against the judgments of the two Courts below dismissing his suit for permanent prohibitory injunction restraining the defendants from interfering in the possession of his newly constructed shop as described in the plaint. 2. The case of the plaintiff is that he had purchased 270/6754 shares in Khata No.103 from Hans Raj, husband of the defendant Kanta Devi, through registered sale deed dated 19.10.1992 and Hans Raj was in possession of the land facing Neharan Pukhar- 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Pragpur-Kaloha road and possession was delivered to him. After that he constructed a shop on the portion marked as A,B,C,D. Kanta Devi claimed a separate possession of this shop since June, 1992. She also claimed that sale deed was fraudulent and denied that the possession has ever transferred to the plaintiff. In-fact the shop, according to her, was constructed by her. On the five settled issues, the Court holds that vide sale deed Ex.PW-2/A the plaintiff purchased a share and had become co-sharer in the suit property and his rights were to be worked out by enforcing law of partition. 3. This judgment was challenged in appeal where the appellate Court holds that though the respondent has not been recorded as co-owner, it is her husband who was recorded as such. In these circumstances, the suit filed by the plaintiff was maintainable provided he proved his possession on Khasra No.867. The proper course for the appellant was to file a separate suit. 4. This appeal has been admitted by this Court on the following three substantial questions of law on 4.7.2001:- “1. Whether the co-owner of the property was entitled to protect his possession against a stranger by seeking decree for injunction? 2. Whether the judgments and decree of the First Appellate Court stands vitiated for not deciding the application for leading 3 additional evidence filed by the appellant under Order 41 Rule 27 C.P.C.? 3. Whether the findings rendered by the courts below are perverse, illegal and erroneous holding that Hans Raj husband of the respondent could not deliver the possession of a specified portion of the suit property to the appellant when the respondent has failed to prove the source of her title/possession over the suit property?” 5. Learned counsel has also brought to my notice judgment in Civil Appeal No.38-D/04, which was an appeal instituted by the minor son of Hans Raj through his mother Smt.Kanta Devi, who is respondent herein against Sarup Chand the appellant herein, Ramesh Chand and his father Hans Raj which was preferred from the judgment in suit for declaration and injunction with respect to the suit land including the present Khasra No.867. The suit was filed on the pleadings that the land was owned by the defendants which includes the plaintiff herein and husband of the respondent and they have been shown in joint possession of the land. The allegation against Hans Raj that he was a drunkard, a man of easy virtue, used to squandering away the family wealth and in this event sale deed executed by him is not binding on his interest. The appellate Court rejected the plea that Hans Raj was a spendthrift, 4 drunkard and was not contributing anything towards family expenses. The Court also did not believe that he is a man of easy virtue and a drunkard. The appeal was dismissed with a specific direction that the sale deed made in favour of the present plaintiff who was respondent No.1 in that appeal, is valid as the share so sold is the share of the defendant Hans Raj himself. 6. I have heard learned counsel appearing for the parties and have gone through the record. 7. I do not find that the Courts below have appreciated the case in the proper perspective. Adverting to the first question as framed for determination by this Court what I find is that Ex.PW- 2/A which is a registered sale deed, confers a superior title on the appellant. The respondent who is wife of Hans Raj admittedly has no title in the land and at best can only be treated as a trespasser. Being a co- sharer, two rights would ensue to him, namely, protection of his interest on the land and right to enforce partition. In this view of the matter, question No.1 is answered in favour of the appellant and against the respondent. This would also dispose of the third question as raised for determination by this Court. Question No.2, does not call for any determination since I have already held that the sale deed Ex.PW-2/A is valid and binding on the interest of the parties and in these proceedings there is no challenge that the sale deed has been procured by fraud 5 or otherwise. It will be open to the appellant to apply for partition of the land and as and when such an application is being made, the possession of the appellant herein with respect to the Khasra number according to Ex.PW-2/A shall be allotted to him. Appeal disposed of. No order as to costs. July 4, 2011 (Dev Darshan Sud) (aks) Judge.