RSA No.4317 of 2000 -1- In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 13.02.2008. Sher Mohd. And others ...Appellants Versus Yasin @ Aasin (deceased) represented by his legal representatives and others ... Respondents. CORAM HON'BLE MR. JUSTICE PERMOD KOHLI. Present: Mr.Avinash Mittal, Advocate, for the appellants. Mr.Harsh Aggarwal, Advocate, for the respondents. -- PERMOD KOHLI, J. (Oral): Heard the learned counsel for the parties at length. The following substantial question of law arises in the present appeal:- Whether a direction in the nature of mandatory injunction can be issued for handing over the possession against a co- sharer? Heard the main appeal with the consent of the learned counsel for the parties for final disposal. The present appeal has been preferred by the plaintiffs in the suit. The appellant-plaintiffs filed a suit for declaration that they are owners in possession of the suit land bearing khewat No.122, Khata RSA No.4317 of 2000 -2- Nos.158 to 160 Rect. No.14, Killa No.26 (0-11), Rect. No.9 Killa No.10 (2-4), 11 (2-9) Rect. No.11 Killa No.6/2 (3-4), 8 (8-18), 12 (5- 10), 7 (8-0), 14 (8-0) ,17/2 (1-8), 18 (7-12), 13 (8-0), 19 (3-4), total measuring 59 kanals along with share in Shamlat Patti, Shamlat Deh, Shamlat Pahar, Jumla Malkah, Bani Banjari, Johar Rasta, trees etc. The admitted case of the parties is that the suit property was owned by Chandu and Kundu as co-sharers. The plaintiffs are the successors-in- interest of Chandu whereas defendants are successors-in-interest of Kundu. The plaintiffs claimed that the land in village Chahlka came to their share whereas the land situated in village Mohd.Pur, Tehsil Nuh District Gurgaon, came to the share of the defendants as per the family settlement. The plaintiffs also claimed that they are in exclusive cultivating possession of the suit land. In their written statement, the defendants while admitting the common ancestors have also admitted the alleged family settlement. However, they denied the exclusive possession of the plaintiffs over the land in question. The claim of the plaintiffs that they are in adverse possession of the land, has also been denied. On the basis of the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the plaintiffs are owners in possession over the suit property as stated in para 2 of the plaint? OPP 2. Whether the plaintiffs have no cause of RSA No.4317 of 2000 -3- action to file the present suit? OPD 3. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 4. Whether the suit of the plaintiffs is bad for non-joinder and mis-joinder of necessary parties? OPD 5. Whether the suit of the plaintiffs is barred by their own act and conduct?OPD 6. Whether the contesting defendants are entitled to the relief of mandatory injunction as detailed in counter claim? OPD 7. Relief. While deciding issue No.1, the learned trial Court came to the conclusion that the plaintiffs are not in adverse possession of the suit property. However, while deciding issue No.6, wherein the Counter Claim of the defendants was to be considered, the learned trial Court allowed the Counter Claim and granted decree for mandatory injunction against the plaintiffs and directed the plaintiffs to handover the possession of the suit land to the defendants vide its judgment and decree dated 12.12.1997. Aggrieved of the aforesaid judgment and decree, only the plaintiffs preferred appeal which has been decided by the impugned judgment and decree dated 30.09.2000 by the learned Additional District Judge, Gurgaon. The short point urged by the learned counsel for the RSA No.4317 of 2000 -4- plaintiff-appellants is that the findings recorded by the learned Lower Appellate Court are self contradictory as on the one hand the learned Lower Appellate Court has declared the parties to be co-sharers in the suit property and on the other hand, decree for mandatory injunction against the plaintiffs has been maintained. I have perused the judgment of the learned Lower Appellate Court in detail. The learned Lower Appellate Court has held that the parties being successors of common ancestors, they are co- sharers in the entire property irrespective of the fact that one property is situated in village Chalka and other property is situated in village Mohd.Pur. The learned Lower Appellate Court also came to the conclusion that the possession of the one co-sharer is the possession of all the co-sharers and there has not been any partition. The alleged family settlement, though admitted by the defendants in their written statement, cannot be considered to be the exclusive proof in view of the entries existing in the revenue record whereunder the defendants have been shown as co-sharers. Consequently, the learned Lower Appellate Court held the parties to be co-sharers and upheld the conclusions of the learned trial Court that the plaintiffs cannot claim the right of adverse possession, their possession being permissive in nature. The learned Lower Appellate Court, however, did not address to the question of Counter Claim and upheld the findings of the learned trial Court whereby the mandatory injunction was granted in favour of the defendants. RSA No.4317 of 2000 -5- Once the parties have been declared as the co-sharers, the defendants are not entitled to seek mandatory injunction to handover the possession of the land in dispute. The findings recorded by the learned Lower Appellate Court are mutually exclusive and are not sustainable. This is particularly so because even the defendants have not challenged this finding either by filing cross-objections or by way of separate appeal. Under the above circumstances, the judgment and decree impugned is hereby set aside to the extent issue No.6 has been decided in favour of the defendants and decree for mandatory injunction has been granted. The Counter Claim shall stand dismissed. The other findings are upheld. In view of the above, the appeal is partly allowed to the extent indicated above. No costs. 13.02.2008. (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES/ NO