RSA No.3616 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3616 of 2006 Date of decision : 07-8-2009 Salamudeen ....Appellant VERSUS Deen Mohd. Alias Dona Khan and another ....Respondents CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Arvind Singh, Advocate, for the appellant. Mr. Bhag Singh, Advocate, for the respondents. RAJIVE BHALLA, J.(Oral) The appellant challenges the judgments and decrees dated 24-10-2005 and 27-03-2006, passed by the Civil Judge (Junior Division) Panchkula and Additional District Judge, Panchkula dismissing his suit and his appeal. The plaintiff - appellant and respondent No.2 filed a suit for permanent injunction to restrain respondent No.1 from interfering in their possession over land measuring 12 kanal 16 marlas described in the plaint by way of khasra numbers. The appellant alleged that he along with respondent No.2 had purchased the suit land from Raza Ali Khan and Abdul Aziz vide sale deed dated 28-6- RSA No.3616 of 2006 -2- 1996. A mutation dated 6-7-1997 was sanctioned on the basis of this sale deed and therefore they are entitled to protect their possession. In addition the appellant prayed that a decree be passed in their favour declaring the appellant and respondent No.2 as owners in possession of 9 kanals 5 marlas situated in khewat No.1, Khatouni No.9, Khasra No.16/9/2/2 min 12/1/2. In response to the averments in the plaint, the respondent filed a written statement asserting that he had purchased 5K-5M and 8 kanals and 9 marlas of aforementioned land, vide registered sale deed and was owner in possession. On the basis of the pleadings, the learned trial court framed the following issues:- 1. Whether the plaintiffs are the owners in possession over the suit property? OPP 2. Whether the plaintiffs came into possession over the suit property after the death of Sukhu being his nephew? OPP 3. Whether the suit is liable to be stayed u/s 10 CPC? OPD 4. Whether the suit is barred u/o 2 rule 2 CPC? OPD 5. Whether the plaintiffs are estopped to file the suit by his act and conduct? OPD 6. Relief. The trial court after considering the pleadings, the evidence adduced and arguments addressed, dismissed the suit by holding that the appellant and respondent No.2 have failed to establish that they are owners in possession of the suit land. RSA No.3616 of 2006 -3- Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 27-03- 2006, the Additional District Judge, Panchkula dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellant submits that though the revenue entries record the parties as co-sharers, but the appellant and respondent No.2 purchased the suit land before the sale deed allegedly executed in favour of respondent No.1 and are, therefore, entitled to pray for and be granted an injunction to protect their possession. It is submitted that there is no absolute proposition in law that a co-sharer must stand by as a mute spectator and allow the other co-sharer to interfere in his possession. It is argued that in case it is held that a co-sharer cannot claim any kind of injunction against an other co-sharer, this would disentitle a co-sharer to any relief even where he is in exclusive possession. It is further argued that the finding that respondent No.1 is in possession, is based upon revenue entries that were corrected during the pendency of the suit and should therefore have been rejected. Counsel for the respondent No.1, on the other hand, submits that the courts below have returned findings of fact that parties are co-sharers of the suit land. It is settled position in law that an injunction cannot issue in favour of one co-sharer against another co-sharer. It is further submitted that revenue entries, though corrected during the suit have not been rebutted by the appellant. RSA No.3616 of 2006 -4- Counsel for the appellant has framed the following questions of law:- 1. Whether an order correction of girdawari during pendency of suit is not binding on the civil court in view of settled law? 2. Whether a parties can be non suited on the grounds for not entering the witness box when other clinching evidence has come on record? 3. Whether a co-share in exclusive possession of land not exceeding his share is entitled to protect the same against forcibly dispossession? 4. Whether a party in possession of land in pursuance of a registered sale deed acknowledging such possession is entitled to seek injunction? I have heard counsel for the parties, perused the impugned judgments and express my inability to accept the arguments raised by counsel for the appellant or to hold that any substantial question of law arises for consideration. The first question of law is whether a civil court is required to reject an order passed by revenue authorities, during the pendency of the suit. It would be necessary to mention here that neither the appellant nor respondent No.2 stepped into the witness box in support of their plea that they are in possession. In fact, they failed to produce any evidence to fortify their assertion that they are owners in possession. The order passed by the Assistant Collector, IInd Grade, Panchkula correcting the khasra girdawaris was challenged by the appellant by filing an appeal which was dismissed by the Collector, Panchkula. Ordinarily revenue authorities desist RSA No.3616 of 2006 -5- from altering khasra girdawaris when a dispute is pending before a court. However, where a khasra girdawari recorded during the pendency of the suit is in consonance with the evidence produced before a civil court, alteration of khasra girdawaris, made during the pendency of the suit, need not be necessarily rejected. The first question of law is, therefore, answered by holding that the courts below did not commit any error in relying upon the order correcting the khasra girdawari. The second question of law has to be answered by holding, that a party can be non-suited for failure to step into the witness box where facts necessary for adjudication of the pending lis are personal to a party. In the instant case, it may not have been necessary for the appellant or respondent No.2 to depose in person as to their possession as possession can be proved by other evidence but the failure of the appellant and respondent No.2, to depose before the trial court assumes significance as they failed to produce any relevant or cognet evidence to establish their possession. By way of the third question of law the appellant asserts that a co-sharer has a right to protect his exclusive possession against another co-sharer. A joint ownership envisages community of interest and commonality of possession in the entire body of joint owners. The only exception to this rule is where a co-sharer claims ouster of the proprietory or possessory rights of another co-sharer and seeks to set up title in himself. In the facts of the present case, the courts below rightly declined the prayer for grant of an injunction. RSA No.3616 of 2006 -6- The fourth question would necessarily have to be answered in accordance with the answer to the third question and is answered accordingly. In view of what has been stated hereinabove, as the courts below have not committed any error of law and as no substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. (RAJIVE BHALLA) 7-08-2009 JUDGE manju