RSA No. 1016 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1016 of 2010 Date of decision:- 11.11.2011 Raghbir Singh & others ...Appellants Versus Kamal Kishore and another ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. R.K. Shukla, Advocate for the appellants 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? RITU BAHRI J. This regular second appeal is against the judgment and decree dated 28.01.2010 passed by the learned Additional District Judge, Patiala, vide which she reversed the judgment and decree dated 29.07.2009 passed by the PCS, Civil Judge (Jr. Divn.) Patiala. Brief facts of the case are that appellants/plaintiffs filed a suit for permanent injunction restraining the respondents/defendants, their servant, agents etc. from interfering in the peaceful, actual physical and cultivating possession of the plaintiffs over the land comprising khewat/khatauni No. 224/339, khasra No. 10 min (1-10) situated at Village Rauni, Tehsil and District Patiala. The case of plaintiffs are that they are RSA No. 1016 of 2010 -2- owners in exclusive possession of the land full described in the head of the plaint as per jamabandi for the year 2002-03 and khasra Girdwari for the year 2005-06. The land of the defendant No. 2 is adjoining to the land in question taking undue benefit of the same, the defendants are threatening to take forcible possession of the suit land. The plaintiffs filed the present suit restraining the respondents/defendants, their servant, agents etc. from interfering in the peaceful, actual physical and cultivating possession of the plaintiffs over the land in dispute. On notice, the defendants appeared and filed their written statement raising preliminary objections to the effect that the plaintiffs has no cause of action to file the present suit and the suit is not maintainable. The defendants are co-sharers in the said land and the injunction lies against the co-sharers. It was denied that plaintiffs are not in exclusive possession of the land mentioned in the plaint, rather the defendant have equal share in the land being member of the joint family. The land has not been divided among the parties, therefore, the possession of the parties over the land is joint. The defendants are in peaceful possession, rather the plaintiffs are unnecessary stopping and disturbing the right of the defendants over the suit land. From the pleadings of the parties, following issues were framed on 04.12.2006:- 1. What the plaintiffs are in exclusive possession of the suit land? OPP 2. If the issue No. 1 is proved, whether the plaintiff is entitled for permanent injunction as prayed for? OPP RSA No. 1016 of 2010 -3- 3. Whether the suit in the present form is not maintainable?? OPD 4. Whether the plaintiffs have got no cause of action to file the present suit? OPD. 5. Relief After going through the evidence led by the parties, the trial Court came to a conclusion that as per the original jamabandi for the year 2002-03 Ex.P-1 and original khasra girdawari for the year 2007 as Ex.P2, possession of the plaintiff was sufficiently proved. In cross-examination of Paras Ram-D.W.1, he has admitted that he has no concern with the suit land and is residing the house or kothi constructed on the share which came to him from his father. The suit of the plaintiffs was decreed by the trial Court restraining the defendants from interfering in the peaceful, actual, physical and cultivating possession of the plaintiffs over the land comprising khewat/khatauni No. 224/339, khasra No. 10 min (1-10) situated at Village Rauni, Tehsil and District Patiala. Thereafter, the defendants filed appeal before the lower Appellate Court. The main ground in the appeal was that the land being joint had not been partitioned. This fact has been admitted by the plaintiffs in their cross-examination. No injunction can be issued against a co-sharer. It was further submitted that the plaintiffs have already sold part of the land vide sale deed Ex.DA. This fact has been ignored by the trial Court while admitting the suit of the plaintiffs. The Appellate Court while scanning all RSA No. 1016 of 2010 -4- the entries in the Jamabandi Ex.P1 has come to a conclusion that it is pertaining to only khatauni NO. 388 and 339. What is the total extent of ownership of the plaintiffs in khasra No. 10, it cannot be calculated from the entries in Jamabandi Ex. P1.In column NO. 4 of the Jamabandi Ex.P1, defendant Kamal Kishore is recorded to be owner of 1/18 share. The names of the remaining owners to the extent of 17/18 shares are not mentioned. In column NO. 5 against Khatauni NO. 388 Kamal Kishore is recorded to be in cultivating possession of 1/6 share of the land measuring khasra No. 10 min (0-10B). One Manjit Singh is recorded to be in cultivating possession of 5/6 share. Against Khatauni No. 339 , in column No. 5, plaintiff Raghbir Singh, Harbans Singh and Shamsher Singh are recorded to be in cultivating possession as co-sharers out of Khasra No. 10 Min (1B-10B). Both the parties have failed to establish that they have any lawful right to retain the possession. The third party who has purchased the land has neither disclosed to the Court nor he has been impleaded as party in order to complete copy of jamabandi is filed so that the extent of ownership of the plaintiffs can be ascertained. The Appellate Court allowed the appeal filed by the defendants on the ground that the plaintiffs have failed to prove that they were in exclusive possession of the suit land in dispute. Heard learned counsel for the parties. The appellant cannot derive any benefit from the judgment of Hon'ble the Supreme Court in a case of Tanusree Basu and others vs. RSA No. 1016 of 2010 -5- Ishani Prasad Basu and others, 2008(3) Civil Court Cases 001 (SC) even though the Supreme Court has held that co-owner being in exclusive possession of the joint property is entitled to mandatory injunction. Prima facie, he is to first establish that he is in exclusive possession if he is not able to prove that he is in exclusive possession then his prayer for grant of mandatory injunction will not be made out. In the facts of the present case, it is not disputed that the plaintiffs and defendants are co-owners of the joint land. Plaintiffs have led their evidence by placing on record Ex. P.1 i.e Jamabandi. The recital in the jamabandi did not make it clear that plaintiffs are in exclusive possession of Khasra No. 10. On the other hand, defendant- Kamal Kishare is recorded to be in cultivating possession of 1/6 share of the land measuring khasra No. 10 min (0-10B). Plaintiffs Raghbir Singh, Harbans Singh and Shamsher Singh are recorded to be in cultivating possession as co- sharers out of Khasra No. 10 Min (1B-10B) The names of other co-sharers to the extent 17/18 share have not been mentioned in the jamabandi. Being an incomplete document, the possession of the plaintiffs is not proved. Plaintiffs have sold part of the land and this aspect is not borne out from the evidence led by the plaintiffs. In view of the above stated facts, plaintiffs have not been able to prove that they are in exclusive possession of the joint property. The jamabandi Ex.P1 does not make it clear that the plaintiffs are in exclusive possession of Khasra No. 10. The third party to whom the plaintiffs have sold RSA No. 1016 of 2010 -6- the land have not been impleaded in the suit. The extent of ownership of the plaintiffs cannot be ascertained. No substantial question of law arises for adjudication by this Court. The impugned judgment dated 28.01.2010 passed by the learned Additional District Judge, Patiala, does not suffer from any infirmity. Accordingly, R.S.A is dismissed. 11.11.2011 ( RITU BAHRI ) G.Arora JUDGE