RSA No.4564 of 2009 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.4564 of 2009 (O&M) Date of decision: 7.12.2010 Brij Lal ...Appellant vs Babu Ram and others ....Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. Present: Mr.Ashish Aggarwal, Advocate, for the appellant. Mr.S.K.Chauhan, Advocate, for the respondents. -- Rakesh Kumar Garg,J. This is plaintiff's second appeal against the judgment and decrees of the Courts below whereby his suit for declaration with consequential relief of permanent injunction restraining the defendant- respondents from alienating the suit land was dismissed. As per the averments defendant-respondent No.1 was the owner of agricultural land measuring 1 kanal 9 marlas being 29/189 share out of total agricultural land measuring 9 kanals 9 marlas comprised in Khewat No.544, Khatoni No.779, rectangle No.105, Killa No.5 (8-0), 6/1 (1-9) situated within the revenue estate of village Nigdu, Tehsil Nilokheri , District Karnal, as per jamabandi for the year 1991-92. Out of the said land defendant-respondent No.1 sold land measuring 5 marlas i.e. 2 marlas to the plaintiff, 2 marlas to defendant No.11 and 1 marla to defendant No.10 vide registered sale deed dated 9.8.1994. Defendant-respondent No.1 also sold land measuring 12 marlas and land measuring 11 marlas out of the suit land to the plaintiff-appellant vide registered sale deeds dated 1.8.1995 and 24.5.1996. It was further pleaded that defendant-respondent No.1 was in RSA No.4564 of 2009 2 exclusive possession over the land comprised in Rect.No.105, Killa No.6/1 (1-9) and the plaintiff-appellant was given the possession over the said khasra numbers. Thereafter, he constructed boundary wall on the said land. The defendnats No.1,8 and 9 (now respondents No.1,8 and 9) tried to dispossess the plaintiff-appellant from the suit land. Thus, he was constrained to file a suit for permanent injunction against the aforesaid defendant-respondent which was decreed on 17.11.2003. It was further pleaded that part of the suit land comprised in Rect No.105, Killa No.6/1(1- 9) is located on metalled road whereas the part of the suit land comprised in Rect No.105 Killa No.5(8-0) is located on the backside and has no proper access to road. Defendant-respondents No.1,8 and 9 in connivance with revenue officials got bifurcated khewat No.544 into two khewats bearing khewat No.592 and 593, while preparing the jamabandi for the year 1996-97. The bifurcation of the said khewat is illegal, null and void and has been done to deprive the appellant of his valuable right of ownership of land located on metalled road comprised in killa No.6/1 (1-9). Under the garb of the bifurcation into two khewats, defendant-respondents No.1,8 and 9 are bent upon to alienate land comprised in killa No.6/1 (1-9), which is in the exclusive possession of the plaintiff-appellant. Upon notice none appeared on behalf of Defendants No.1,10 and 11 and as such they were proceeded against ex parte. Defendants No. 2 to 9 filed written statement raising various preliminary objections. On merits, it was denied that plaintiff-appellant had become owner in possession of the land measuring 1 kanal 5 marlas. It was further denied that he was given exclusive possession over Khasra No.6/1 (1-9) by defendant No.1. The construction of boundary wall over the land in dispute was also RSA No.4564 of 2009 3 denied. It was pleaded that khewat No.544 was bifurcated into two khewats by the revenue authorities as per law and the defendants had every right to alienate their share in the land measuring 1 kanal 9 marlas. Rest of the contents of the plaint were denied and dismissal of the suit was prayed. On the basis of pleadings of the parties, the following issues were framed by the trial Court:- 1.Whetherthe entries in the jamabandi for the year 1996-97 pertaining to Khewat No.592 and 593 regarding land in dispute are illegal, null and void ?OPP 2.If issue no.1 is proved whether the plaintiff is entitled to decree for mandatory injunction directing the revenue authorities to rectify the revenue entries of Khewat Ni,592 and 593 in place of Khewat No.544 ?OPP 3. Whether plaintiff is entitled to decree for permanent injunction restraining the defendants No.1,8 and 9 from alienating dispossessing the plaintiff illegally and forcibly from the suit land ?OPP 4. Whether the suit is not maintainable ?OPD 5. Whether plaintiff has got no cuase of action to file and maintain the present suit ?OPP 6. Relief. No other issue was claimed by the parties. On appreciation of evidence both the Courts below recorded a finding that on the basis of sale deeds dated 9.8.1994, 1.8.1995 and 24.5.1996, the appellant was sold only a share in the land and thus he had become owner of the land measuring 1 kanal 5 marlas in the joint land measuring 9 kanal 9 marlas and merely getting the exclusive possession over killa No. 6/1(1-9) does not make the appellant owner in possession of the said killa number, and his possession will remain as a co-sharer until the RSA No.4564 of 2009 4 land is partitioned, though he was entitled to protect the same against the co-sharers but cannot seek injunction against other co-sharers to sell their respective shares. Resultantly, the suit of the plaintiff and appeal filed by him were dismissed. Still not satisfied the appellant has approached this Court by way of instant appeal. In support of his appeal, learned counsel for the appellant has vehemently argued that it has been proved on record that the respondents in collusion with the revenue officials without getting the land in question partitioned and without any order of partition divided the existing kheat No.544 comprising of Rect No.105 killa No.5 (8-0) and 6/1(1-9) into two separate khewats resulting into partition at the back of the appellant and without any notice to him, and by the aforesaid division great prejudice was caused to the rights of the appellant as under the garb of the aforesaid division of khewat the share of the respondents in the land in dispute has been reduced. Thus, it was agreed that the following substantial question of law arises in this appeal:- “Whether the learned courts below have ignored the material admission of the respondents in the matter that till date there is no application for partition, nor any order of partition of the land in question measuring 9 kanals 9 marlas nor any order or basis for partition of the above land measuring 9 kanals 9 marlas was shown to have been partitioned in the subsequent jamabandi for the year 1996-97 by suo motu carving out two khwats of 8 kanals 0 marlas and 1 kanal 9 marlas ? I have heard the learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. RSA No.4564 of 2009 5 Admittedly vide three sale deeds dated 9.8.1994, 1.8.1995 and 24.5.1996, the aforesaid the appellant had purchased share in the suit land and he became co-owner of the land measuring 1 kanal 5 marlas. No doubt, the appellant was put into exclusive possession of the land comprised in killa No.6/1(1-9) but merely getting exclusive possession of the suit land does not make him absolute owner in possession of the suit land. Once the appellant has taken possession as co-sharer it will remain the same until the land is partitioned. It is well settled that a co-sharer is entitled to protect the exclusive possession against the other co-sharer but he cannot seek injunction against other co-sharers restraining them to sell their respective shares. It is relevant to mention that in Civil Suit No.291 of 2000 filed by the appellant and decided on 17.11.2003 it was held that sale of land in his favour out of joint khewat was a sale of share and defendants were restrained from interfering in the possession of appellant over the specific khasra number till till the partition takes place by metes and bounds. The appellant is also bound by the aforesaid decree. It may also be noticed at this stage that the argument raised by the learned counsel for the appellant is without any basis as no such pleadings have been made in the suit nor any such evidence has been brought on record to show that share of the appellant has been reduced by division of Khewat No.544. Not only this even no such issue was claimed by the appellant. Thus, there is nothing on record on the basis of which it can be said that the aforesaid division of khewat by the revenue officials was against the law. In this view of the matter, I find no merit in this appeal. RSA No.4564 of 2009 6 No substantial question of law arises in this appeal. Dismissed. ( Rakesh Kumar Garg) Judge December 7, 2010 rk