In the High Court of Punjab and Haryana at Chandigarh R.S.A. No. 3635 of 2007 Date of decision: April 17, 2009 Pirthi Gir ... Appellant vs. Surender Singh ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Naresh Prabhakar, Advocate for the appellant. Mr. M.S. Virk, Advocate for the respondent. A.N. Jindal, J Its defendant's second appeal against the judgment dated 31.7.2007 passed by the learned Additional District Judge, Sirsa dismissing the appeal against the judgment dated 31.7.2006 passed by the Civil Judge (Jr. Division), Sirsa, decreeing the suit of the plaintiff restraining the defendant-appellant (herein referred as 'the defendant') from interfering in the possession of the plaintiff-respondent (herein referred as 'the plaintiff') over the land measuring 3 kanals as fully detailed in the heading of the plaint. The substantial question of law involved in the case is “whether a co-sharer in exclusive possession of a parcel of the land, could be ousted by the other co-sharer without getting the land partitioned?” The plaintiff being co-sharer on the basis of the exclusive possession over an area of 3 kanals comprised in Khewat No.155, Killa No.20 (3-0) situated in village Jodhkan, Tehsil and District Sirsa, by way of purchase through sale deed No.3839 dated 28.9.1979 from Arjan Gir has sought injunction restraining the defendant from interfering into his possession. To the contrary, the defendant denied the ownership of the plaintiff and pleaded that the said sale deed was out of a share of the total land, therefore, he cannot claim ownership of the specific khasra numbers. The trial court framed the following issues :- 1. Whether the plaintiff is owner in possession of the suit land, as alleged?OPP R.S.A. No. 3635 of 2007 -2- 2. Whether the suit is not maintainable in the present form?OPD 3. Whether the plaintiff has concealed material facts from the court and if so to what effect?OPD 4. Whether the suit is bad for non joinder of necessary parties?OPD 5. Relief. Both the parties led evidence and ultimately the suit was decreed, whereas, the appeal was dismissed. There is no denying a fact that the plaintiff purchased 3 kanals of land comprised in Khewat No.155, Killa No.20 (3-0) situated in village Jodhkan, Tehsil and District Sirsa, vide sale deed bearing No.3839 dated 28.9.1979 and he has been paying abiyana vide receipts Ex.P-1 to Ex.P12. The mutation Ex.P-14, proved on the record also reveals the ownership and possession of the plaintiff over the suit land. Similarly, copy of the Jamabandi also reflects his possession over the exclusive khasra numbers. Though aforesaid khewat number so purchased by him may be out of joint khata, yet he could certainly assert and protect his exclusive possession over a specific khasra number, till the land is not partitioned and the defendant who is not in possession of the said land, could not oust the plaintiff without getting the land partitioned. The evidence with regard to transfer of possession are the affidavits Mark-X and Y, suffered by Surjit Kaur and Tarlochan Kaur, both wife and daughter of Saudagar Singh, who was initially recorded in possession of the suit property. Saudagar Singh (whose whereabouts are not known) has not disputed the transfer of possession to the plaintiff, as such, now the defendant who was never in possession of the suit land could not oust the plaintiff without getting the land partitioned. Consequently, the substantial question of law, as formed herein, could be answered against the appellant. Dismissed. April 17, 2009 (A.N. Jindal) deepak Judge