Regular Second Appeal No. 2058 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2058 of 2010(O&M) Date of decision : March 17, 2011 Sukhwinder Singh and another ....Appellants versus Bhajan Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. K.S.Boparai, Advocate, for the appellants L.N. Mittal, J. (Oral) Defendants Sukhwinder Singh and Baljit Singh having failed in both the courts below are in second appeal. Respondent – plaintiff Bhajan Singh filed suit against defendants for permanent injunction alleging that the plaintiff is owner in possession of the suit land measuring 33 kanals 4 marlas since long. The defendants tried to interfere in plaintiff's possession over the suit land. Accordingly, the plaintiff sought permanent injunction restraining the defendants from interfering in peaceful possession of the plaintiff over the suit land except in due course of law. Defendants, inter alia, pleaded that they are in possession of Regular Second Appeal No. 2058 of 2010(O&M) -2- land of khasra nos. 10//25/1/1(0-17) and 25/1/2(0-17) out of the suit land for the last 30 years whereas the defendants did not deny possession of the plaintiff over the remaining suit land. The defendants alleged that they had moved application for correction of khasra girdawari of the aforesaid 1 kanal 14 marlas land (herein referred to as the disputed land) which was still pending before the Assistant Collector. It was also pleaded that the suit land and other land was joint property of the parties but the same had been partitioned. Previously defendants' father Tara Singh was in possession of the disputed land and after his death in the year 1997, defendants are in possession thereof. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Sultanpur Lodhi vide judgment and decree dated 21.1.2008 decreed the plaintiff's suit restraining the defendants from interfering in plaintiff's possession over the suit land except in due course of law. First appeal preferred by defendants has been dismissed by learned District Judge, Kapurthala vide judgment and decree dated 7.11.2009. Feeling aggrieved, the defendants have preferred the instant second appeal. Appellants have also moved CM No. 3628.C of 2011 for additional evidence to produce statement made by plaintiff – respondent in some other suit. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that defendants are in possession of the disputed land and therefore, injunction Regular Second Appeal No. 2058 of 2010(O&M) -3- could not be granted in favour of the plaintiff. It was also contended that parties are co-sharers in the entire suit land and other land and consequently, possession of plaintiff over the suit land as co-sharer would be possession of all the co-sharers and for this reason also, injunction could not be granted against the defendants who are co-shares in the joint land. Reliance in support of this preposition has been placed on two judgments of Full Benches of this Court i.e. Ram Chander versus Bhim Singh & others, 2008(3) RCR (Civil) and Bhartu versus Ram Sarup, 1981 PLJ 204. In this context, it was argued that the plaintiff did not claim his exclusive possession over the suit land under some arrangement among the co-sharers. I have carefully considered the aforesaid contentions. From the record, it appears that 59 kanals 11 marlas land was joint land of the plaintiff and his two brothers Kewal Singh and Tara Singh. Defendants are sons of Tara Singh. Plaintiff had half share in the said joint land whereas Kewal Singh and Tara Singh jointly had the remaining half share. The plaintiff also purchased some land from the share of Kewal Singh and Tara Singh through sale deeds. Learned counsel for the appellants stated that the plaintiff purchased 6 kanals land from Tara Singh and 3 kanals 19 marlas land from Kewal Singh. Consequently, the share of plaintiff in the total joint land measuring 59 kanals 11 marlas comes to a little less than 40 kanals. The plaintiff has claimed his possession over 33 kanals 4 marlas land in suit which is less than his share. Even defendants did not plead that the plaintiff is in possession of land in excess of his share in the joint land. Regular Second Appeal No. 2058 of 2010(O&M) -4- In the judgments of Ram Chander (supra) and Bhartu (supra), it has nowhere been laid down that co-sharer in exclusive possession of a part of the joint land can be dispossessed by the other co-sharers without due course of law. On the contrary, the ratio descedendi of the aforesaid judgments is that a co-sharer in exclusive possession of a part of the joint land being not in excess of his share cannot be dispossessed therefrom except in due course of law even by the other co-sharers. The contention of counsel for the appellants that possession of a co-sharer over part of the joint land is deemed to be possession of all the co-sharers is misconceived because such possession of other co-sharers who are not in actual possession would be constructive possession only whereas the actual physical possession has to continue with the co-sharer who is in exclusive actual physical possession thereof and the same can be disturbed only in due course of law and not otherwise. Even co-sharer cannot be permitted to take law in his own hands. Co-sharers who are out of possession have legal remedy open to them and they can resort to process of law to vindicate their rights but they cannot take the law in their own hands to forcibly and illegally dispossess the co-sharer who is in actual exclusive possession of part of the joint land. In the instant case, possession of the plaintiff over the suit land except 1 kanal 14 marlas land is not denied even by the defendants. The dispute remains regarding 1 kanal 14 marlas only. In revenue record including jamabandi and khasra girdawari, the plaintiff was recorded to be in possession of the disputed land also since the year 1984 till the filing of Regular Second Appeal No. 2058 of 2010(O&M) -5- the suit on 24.5.2005 as submitted by counsel for the appellants. Thus, revenue entries for more than two decades prior to the filing of the suit recorded possession of the plaintiff over the disputed land also. Entry in jamabandi carries presumption of correctness. The said presumption is strengthened if the entries continue for a long period, as in the instant case for more than two decades. The said entries have not been rebutted by the appellants. The plaintiff has, therefore, been rightly held to be in possession of the suit land including disputed part thereof. Learned counsel for the appellants vehemently contended that defendants had moved application for correction of khasra girdawari on 24.5.2005 the date on which the suit was instituted and correction of khasra girdawari of the disputed land has since been ordered in favour of the appellants during the pendency of the suit. However, correction of khasra girdawari made during the pendency of the suit is not sufficient to hold that appellants/defendants are in possession of the suit land. On the other hand, there are consistent revenue entries for more than two decades till the filing of the suit regarding possession of the plaintiff over the disputed land. The courts below have, therefore, rightly held the plaintiff to be in possession of the suit land including disputed land. In statement made by plaintiff, sought to be produced by additional evidence, the plaintiff had stated that plaintiff and defendants herein were jointly cultivating the entire joint land. However, it is not even the case of the defendants that the parties are jointly cultivating joint land. Defendants themselves claimed their exclusive possession over 1 Regular Second Appeal No. 2058 of 2010(O&M) -6- kanal 14 marlas out of the suit land. Consequently, proposed additional evidence is irrelevant for the adjudication of the instant second appeal. Accordingly, application for additional evidence bearing CM No. 3628.C of 2011 is dismissed. Concurrent finding recorded by the courts below regarding possession of the plaintiff over the suit land including the disputed land is based on proper appreciation of the evidence and is supported by cogent reasons. The said finding does not warrant interference in exercise of second appellate jurisdiction because the same is not shown to be perverse or illegal in any manner not it is based on misreading or misappreciation of evidence. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is found to be without any merit and is accordingly dismissed in limine. ( L.N. Mittal ) March 17, 2011 Judge 'dalbir'