IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4671 of 2009 (O&M) Date of decision : 17.12.2009 Balwinder Singh and others … Appellants Versus Karam Singh and others …Respondents CORAM : HON’BLE MRS.JUSTICE SABINA Present: Mr.Jaspal Kaur Gurna, Advocate for the appellants. Sabina, J. Plaintiff filed a suit for permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff over suit land. Suit of the plaintiff was allowed by Civil Judge (Jr.Divn.) Patiala vide judgment and decree dated 30.4.2008. In appeal, the Addl. District Judge, (Adhoc) Patiala upheld the order of the trial court vide judgment and decree dated 19.102.009. Hence, the present appeal. The brief facts of the case as noticed by appellate Court in para Nos.2 to 4 of its judgment read as under:- “2. The plaintiffs/respondents filed the suit for permanent injunction for restraining the appellants/defendants from interfering in their possession over the land, fully described in the heading of the plaint. 3. It is alleged in the plaint that the plaintiffs are owners and are in actual possession of the suit land and the defendants have no right or interest. The total area of the land is 258 bighas and the defendants are shown as co-shares in the same. However, the land comprised in khasra No.168 is in exclusive possession of the plaintiffs. The defendants are trying to forcibly occupy khasra No.168 the area of which is 5B-2B out of which RSA No.4671 of 2009 (O&M) 4B-10B is being cultivated by the plaintiffs. However, tubewell kotha belonging to the defendants is there. They requested the defendants not to take the law in their own hands, but to no effect. Hence the suit. 4. Defendants in written statement denied that the plaintiffs are owners of khewat No.6 Khasra Nos.165, 164, 166 and half of Kh.No.167 of its Western side along with other land are in possession of the defendants whereas half of Kh.No.167 on the Eastern side and Kh.No.171, 170 and other land are in possession of the plaintiffs and the parties are co-sharers. In fact, 1 bigha out of Kh.No.168 is under cultivation with the defendants and they have sold the crop from this khasra number. The remaining area out of said 2B-11B is being used by the defendants for storing of animal’s waste and tethering of cattle. Their toka machine an one electric motor are also installed there. Their three goharas are also there. The plaintiffs have concealed all these facts. They have every right in khasra No.168. They denied that they are threatening the plaintiffs or that the plaintiffs are in possession or that the plaintiffs are cultivating any part of this khasra number. Remaining averments are also denied.” From the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the plaintiffs are entitled to permanent injunction as prayed for? OPP 2. Whether the plaintiffs have not come to the Court with clean hands? OPD. 3. Whether the defendants are entitled to injunction restraining the plaintiffs from interfering in their half share? OPD. 4. Relief.” 2 RSA No.4671 of 2009 (O&M) After hearing learned counsel for the appellant, I am of the opinion that the instant appeal is devoid of any merit and deserves dismissal. Learned counsel for the appellants has submitted that entries in the jamabandi had been duly rebutted. Learned counsel has further submitted that no injunction can be granted against co-sharer. In support of her contentions, reliance has been placed on the judgment of this Court in case Behari Lal Vs. Raja Ram, 1982 P.L.J., 295 wherein it has been held that entries in the jamabandi were rebuttable. After hearing learned counsel for the appellants, I am of the opinion that the present appeal is devoid of any merit, deserves dismissal. It has been held by this Court in the case Sant Ram Nagina Ram vs. Deva Ram Nagina Ram and others AIR 1961 PB 528 as under:- “(1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of joint property by one co-owner, is in the eye of law, possession of all even if all but one are actually out of possession. (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co- owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other. (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. 3 RSA No.4671 of 2009 (O&M) (6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition. (8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. (9) Where a portion of the joint property is by common consent of the co-owners reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered. Case law reviewed.” A presumption of truth is attached to the entries in the jamabandi. However, the said presumption is rebuttable but the defendants had failed to rebut the same. It is a common saying that men may tell lies but documents do not. The oral evidence led by the defendants, thus fails to rebut the entries in the jamabandi qua exclusive possession of the plaintiff over khasra number in dispute. Plaintiffs had stated that 12 biswas of land out of khasra No.168 was in possession of the defendants as there was a tube well bore alongwith a room situated in the said area. Both the courts below after appreciating the evidence led by the parties on record have given a finding of fact that the plaintiffs are in exclusive possession over khasra in dispute excluding 12 biswas of land. The defendants cannot interfere in the 4 RSA No.4671 of 2009 (O&M) exclusive possession of the plaintiffs. Both the parties are co-sharer in the suit land. The finding of fact arrived at by the courts below cannot be interfered with in appeal by this Court. No substantial question of law arises in this appeal. Dismissed. [ SABINA ] JUDGE 17.12.2009 sd 5