IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3271 of 2009 Date of Decision : September 09, 2009 Darbara Singh ....Appellant Versus Jugraj Singh and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Vinod K Kataria, Advocate T.P.S. MANN, J. Suit filed by the plaintiff-appellant for declaration with consequential relief of permanent injunction was dismissed by Additional Civil Judge (Senior Division), Faridkot on 11.3.2008. Aggrieved of the same, the plaintiff filed the first appeal, which was dismissed by District Judge, Faridkot on 11.6.2009. He is now before this Court by way of second appeal. According to the plaintiff-appellant, Jugraj Singh and Mukhtiar Singh-defendants were recorded as owners in possession in equal share of 1/4th share of land out of total land measuring 324 Kanals 16 Marlas. Vide sale deed dated 14.6.2000, the plaintiff purchased 16 kanals 18 marlas out of the said land from Mukhtiar Singh-defendant for Rs.3,17,000/- and became its owner in possession. Mutation was also R.S.A. No. 3271 of 2009 -2- sanctioned in his favour. However, Jugraj Singh-defendant, who was owner to the extent of 1/8th share only in the total land measuring 324 kanals 16 marlas dishonestly, illegally and with malafide intention to harm and harass the plaintiff, transferred 57 kanals of land in favour of his sons Labh Singh, Paramjit Singh and Manoj Singh-defendants No.2 to 4, respectively, vide Tabdil Malkiat (transfer deed) dated 26.6.2002. This deed of transfer was illegal on the part of Jugraj Singh-defendant as he was not competent to make transfer in excess of his share. It was also averred that Jugraj Singh and his sons occupied the land of the plaintiff forcibly in February 2004. Accordingly, the plaintiff sought a declaration that the Tabdil Malkiat, executed by Jugraj Singh-defendant in favour of his sons, was illegal and not binding upon his rights as owner of 16 kanals 18 marlas of land purchased by him vide registered sale deed 14.6.2000 from Mukhtiar Singh-defendant and the mutation sanctioned on the basis of the said transfer deed was also illegal and null and void. The plaintiff also sought consequential relief of permanent injunction so as to restrain defendants No.1 to 4 from alienating or encumbering in any manner the suit land. While opposing the suit, defendants No.1 to 4 in their written statement stated that the plaintiff had concealed material facts from the Court. He purchased the land from Mukhtiar Singh-defendant, despite there being judgment and decree in favour of Jugraj Singh- defendant against Mukhtiar Singh restraining the latter from alienating R.S.A. No. 3271 of 2009 -3- specific portion of the land or more than his share. When the plaintiff came to know about the violation of the judgment and decree, he alleged that he had purchased share in the total Khata and not any specific portion of the land. Thus, he was not entitled to grant of relief of declaration and injunction. It was, however, admitted that Jugraj Singh- defendant had transferred the land in favour of defendants No.2 to 4, who were his sons, in accordance with law and his right in the land. Mutation was, thereafter, rightly sanctioned after probing the record of right. Defendants No.1 to 4 never forcibly occupied the land but they were in possession of the same as per their right. Despite service, Mukhtiar Singh-defendant No.5 did not appear and was proceeded against ex parte by the trial Court vide order dated 5.4.2005. After hearing learned counsel for the parties and going through the evidence on the file, learned Courts below held that the plaintiff had not purchased any specific Khasra numbers and was merely a co-sharer and, therefore, not entitled to any injunction against the other co-sharers. The Tabdil Malkiat dated 26.6.2002 was held to be legal and valid. The suit was, accordingly, dismissed. As per the plaintiff-appellant, he purchased land measuring 16 kanals 18 marlas from Mukhtiar Singh-defendant vide sale deed Ex.P1 dated 14.6.2000. In the said sale deed, it was mentioned that the R.S.A. No. 3271 of 2009 -4- land being sold was situated in Khasra numbers 287 min (8-0), 288 min (8-0) and 225/3 min (0-18). Later on Tatima Ex.P2 was executed to reflect that the sale was only from the share of Mukhtiar Singh. It was rightly done as Mukhtiar Singh, being co-sharer, was not competent to alienate/transfer specific Khasra numbers out of the joint holdings. At the most, he could alienate his share. Therefore, the stand of the plaintiff that he had purchased specific Khasra numbers from Mukhtiar Singh cannot be accepted. Once the plaintiff comes to own a portion in the joint land, he is to be treated as co-sharer in the entire holdings and not of any specific Khasra numbers. As a co-sharer, he cannot ask for an injunction against the other co-sharers. Admittedly, Jugraj Singh was also a co-sharer in the total land holding. Being a co-sharer, he was competent to transfer his share in favour of his sons on the basis of Tabdil Malkiat dated 26.6.2002. There is no evidence brought on the record by the plaintiff that Jugraj Singh had no share in any other land other than in Khewat No.64. In such a situation, the transfer effected by him of his share was from the total land and not out of Khewat No.64 alone. The relief of permanent injunction is rightly denied to the plaintiff on the ground that each co-sharer is deemed to be in possession of every inch of the joint property. The only course left for the plaintiff is to file partition proceedings by impleading all the co-sharers of the joint Khata so as to own and possess specific portion. R.S.A. No. 3271 of 2009 -5- In view of the above, no fault can be found with the concurrent findings of facts arrived at by the learned Courts below while dismissing the suit filed by the plaintiff-appellant. These findings are neither perverse nor do they suffer from any illegality or infirmity. Consequently, they cannot be upset and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. Though learned counsel for the appellant has formulated some substantial questions of law by incorporating them in para 10 of the grounds of appeal yet they do not arise for determination. Resultantly, the appeal is dismissed in limine. ( T.P.S. MANN ) September 09, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO