RSA No. 3753 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3753 of 2007 Date of Decision: 12.08.2009 Bant Singh son of Ishar Singh r/o village Behman Diwana, Tehsil and District Bathinda. ... Appellant Versus Gurdial Singh son of Ishar Singh resident of village Behman Diwana, Tehsil and District Bathinda. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Rajiv Mittal, Advocate, for the appellant. Mr. Daman Jeet, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 11.08.07, rendered by the Court of Additional District Judge, Bathinda, vide which, it accepted the appeal, against the judgement and decree dated 30.03.2007, rendered by the Court of Additional Civil Judge (Senior Division), Bathinda, dismissing the suit of the plaintiff. 2. The plaintiff, claimed that, he was a joint owner, in joint possession of the land, measuring 9 kanals 17 marlas, situated at RSA No. 3753 of 2007 2 Behman Diwana. The defendant, however, made an attempt, to raise construction and uproot trees, from the land, comprising khasra Nos. 1711/433, 434 (9-17), and instal tube-well therein. The defendant, was many a time asked, not to do so, but to no avail. On the final refusal of the defendant, to desist, from his nefarious designs, left with no other alternative, a suit for permanent injunction, was filed. 3. The defendant, put in appearance, and filed written statement, wherein he took up various objections, and contested the suit. It was admitted that the parties, are co-sharers, in the property, in dispute. It was stated that an application for partition of the joint land, was pending, in the Court of Assistant Collector 1st Grade, Bathinda, and both the parties, were contesting the same. It was further stated that a co-sharer in exclusive possession of a piece of land, can use the same, in the manner, he likes, subject, of course, to the result of partition proceedings. It was further stated that trees were planted by the defendant and, as such, he was, in exclusive possession of the same, and, therefore, was competent to cut the same. It was further stated that another civil suit, between the parties, was already pending, in the Court of Civil Judge (Junior Division), Bathinda. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled for the relief of injunction? OPP (ii) Relief. 5. After hearing the Counsel for the parties, and on going RSA No. 3753 of 2007 3 through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal, was preferred by the plaintiff/appellant, which was accepted, by the Court of Additional District Judge, Bathinda, vide judgement and decree dated 11.08.07. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendant/appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 9. The Counsel for the defendant/appellant, submitted that no doubt, the land, in dispute, was the joint ownership of the parties. He further submitted that since the appellant, was in exclusive possession of a portion of the land, where the trees, were standing, and, as such, he was competent to cut the same, raise construction thereon, as also instal tube-well. He further submitted that the first Appellate Court, was wrong, in coming to the conclusion, that till joint land, was partitioned by the Collector, no construction, could be raised, nor the trees, could be cut, nor the tube-well could be installed. He further submitted that the judgement and decree of the first Appellate Court, being illegal, were liable to be set aside. 10. On the other hand, the Counsel for the respondent, submitted that the parties, being in joint possession of the land, in dispute, the defendant/appellant, could not illegally raise construction, on any portion of the same, nor could cut trees therefrom, nor could instal tube-well. RSA No. 3753 of 2007 4 11. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. From the Jamabandi, for the year 1998-99, D1 and khasra girdawri, for the year 2005-06 exhibit D2, it was proved, that the parties were the joint owners, in joint possession of the land, in dispute. The claim of the appellant, that he was in exclusive possession of a portion of the land, where the trees, were standing, and that he could cut the same, and raise construction, as also instal tube-well, was, thus, belied from the entries, in the jamabandi, to which the presumption of truth is attached, and the entries, in the khasra girdawri, to which, the presumption of correctness is attached. The first Appellate Court, was right, in coming to the conclusion, that the plaintiff/respondent, had genuine apprehension, in his mind, that the defendant/appellant, was going to raise construction over the joint land, cut the tress therefrom, and instal tube-well therein. In Sat Ram Nagina Ram Vs. Daya Ram Nagina Ram, AIR 1961, Punjab 528 (DB), it was held, that every co-owner has right to use the joint property in a husband like manner, but not inconsistent with similar rights of other co-owners. That inconsistency in similarity of rights of co-owners is bound to creep in, when a co-owner contemplates to change the user of the land or get exclusive possession by doing acts as per his wishes. When such is the position, then relief of injunction should be legally granted. The first Appellate Court, was also right, in holding, that since the partition proceedings, in respect of the land, in RSA No. 3753 of 2007 5 dispute, were already pending, before the Assistant Collector, the aforesaid acts, could not be committed by the defendant/appellant. The findings of fact, recorded by the first Appellate Court, that the parties, were joint owners, in the joint possession of the property, in dispute; that the defendant/appellant, being the joint owner, in joint possession of the land, in dispute, was neither legally competent, to raise construction, on any portion thereof, nor cut the trees, nor instal the tube-well, until the land is partitioned, being based on the correct appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity and need no interference. The judgement and decree of the first Appellate Court, is liable to be upheld. The submission of the Counsel for the defendant/appellant, being without merit, must fail, and the same stands rejected. 12. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 12.08.2009 (SHAM SUNDER) Amodh/ashish JUDGE