RSA No. 1437 of 2004 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 1437 of 2004 Date of decision: November 6,2008 Jagdish Chander ..Appellant. Versus Smt.Leelawati and others ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr.Bhag Singh, Advocate for the appellants Mr.S.S.Dinarpur, Advocate and Mr.S.M.Sharma, Advocate for the respondent. ... Rakesh Kumar Garg,J. This is defendant's second appeal challenging the judgment and decree of the lower Appellate Court whereby suit filed by the plaintiff- respondents for permanent injunction restraining the defendant not to interfere into the peaceful cultivating possession of the plaintiffs in any manner and further restraining the defendant not to dispossess the plaintiffs forcibly from the suit land except in due course of law till the land is partitioned by mete and bounds subject to adjustment of his share in the suit land has been decreed. The plaintiffs filed a suit for permanent injunction restraining the defendant not to interfere into their peaceful cultivating possession of the suit land detailed in the head notes of the plaint of the suit and further restraining the defendant not to encroach upon the land comprising of Khatauni No.8/16, Khasra No.33//18/2/2 (4-0), 133 (1-19), Khewat Khatauni No.239 Min/388, Min, Khasra No.132 (0-10), Khewat/ Khatauni No.262/417, Khasra No.134/2 (0-13), forcibly situated at village Pasiala, H.B.No.218, Tehsil. & District Ambala in view of jamabandi for the year 1989-90 and Khasra Girdawari and further restraining the defendant not to dispossess the plaintiff forcibly from the suit land except in due course of law. RSA No. 1437 of 2004 2 It was pleaded by the plaintiffs that they are in cultivating possession of the suit land. Defendant purchased 1/5th share from Om Parkash son of Leelawati, plaintiff No.1 vide sale deed dated 11.6.1991. The land was mutated to the extent of 6 K-16 Mls. in the name of defendant vide mutation No.575 and in the said mutation, the defendant is shown as a co-sharer to the extent of 1/5th out of 34 K- 2Mls. It is further pleaded in the suit that said Om Parkash was never in possession of specific khasra numbers, i.e., 33//18/2/2 (4- 0), 133 (1-19), 132 (0-10) and 134/2 (01-13) nor his name existed as an owner and in cultivating possession of the aforesaid numbers in the revenue record. It was also pleaded that the plaintiffs are in peaceful possession of the suit land. The defendant under the garb of the said sale deed has threatened to get the forcible possession of the aforesaid khasra numbers, whereas he has no right and title to do so because the land has not been partitioned as yet. Hence this suit. Defendant contested the suit. He filed the written statement raising various preliminary objections including that the suit is barred under Section 11 of CPC. On merits, the defendant controverted all the pleadings of the plaintiffs and took the plea that the parties to the suit are co-sharers but he is in exclusive possession of Khasra No.133, 132, 134/2, 33//18/2/2 as he had purchased the same from Om Parkash son of plaintiff No.1 and brother of remaining plaintiffs vide sale deed dated 11.6.1991 for consideration of Rs.45,000/- (Rs. Forty five thousand only). The vendor delivered the possession of the aforesaid Khasra Numbers to him and it was mentioned in the sale deed. The plaintiffs are thus not at all concerned with the aforesaid Khasra Numbers and they are not in possession of the same. It is defendant who is in actual, physical cultivating possession of the aforesaid Khasra Numbers. The revenue entries are in his favour. So the question of any attempt to encroach upon the land or threatened the plaintiff to encroach upon the land does not arise. It was contended that the suit of the plaintiff is without any merits and is based on false RSA No. 1437 of 2004 3 and frivolous facts and be dismissed. After appreciating the evidence of the parties and submissions of the counsel for the parties, the trial Court dismissed the suit vide its judgment and decree dated 26.3.2003. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the plaintiffs filed an appeal which was accepted by the Additional District Judge(Fast Track Court), Ambala vide its judgment and decree dated 4.12.2003 and the suit of the plaintiff was decreed and the defendant was restrained from disturbing the actual physical cultivating possession of the plaintiffs on the suit land and dispossessing them forcibly from the disputed khasra numbers except in due course of law. Still not satisfied, the defendant has failed this appeal in this Court challenging the judgment and decree of the lower Appellate Court. While allowing the appeal of the plaintiffs, the lower Appellate Court recorded a finding of fact that there is no dispute that Om Parkash was the owner in the suit land to the extent of 1/5th share which he sold to the appellant. However, defendant-appellant has failed to prove that Om Parkash was in cultivating possession of the suit land. The lower Appellate Court also found that Om Parkash vendor of the appellant could not deliver the actual physical possession of khasra numbers in dispute. From the jamabandi Ex.P1 for the year 1990, it has been established that Om Parkash has been recorded as a co- sharer to the extent of 1/5th share along with plaintiffs and was shown in joint possession of the land with other co-sharer. Ex.P1 does not record Om Parkash in exclusive possession of disputed khasra numbers. Therefore, the pleadings of the appellant and the evidence led to prove this fact that Om Parkash was in exclusive possession of the disputed khasra numbers is not supported by the revenue record. Therefore, Om Parkash could not have delivered actual physical possession of the disputed khasra numbers. Even by virtue of the sale deed also, Om Parkash has only sold his 1/5th share to the defendant. I have heard learned counsel for the parties and perused the RSA No. 1437 of 2004 4 record. Learned counsel for the appellant has vehemently argued that from the revenue record i.e., Exhs.D5 to D8 which shows the exclusive possession of the appellant on disputed khasra numbers; the case of the appellant stands proved as the presumption of truth is attached to the entries in the revenue record. However, the argument of the learned counsel for the appellant is without any force as the said presumption has been successfully rebutted by the plaintiff- respondents by placing on record evidence to show that the application for correction of khasra girdawari is still pending for adjudication before the revenue authorities. Thus, the appellant cannot take any advantage of the entries of the jamabandi for Exhs.D5 to D8. These entries in the revenue record had been made on the basis of an order passed by Assistant Collector IInd Grade, Saha which has been set aside and the Assistant Collector IInd Grade, Saha has been ordered to reconsider the application by taking all the evidence into account The contention of the counsel for the appellant that the present suit is barred under the provisions of Section 11 of CPC as earlier suit filed by the plaintiff-respondents for permanent injunction on the same allegations which are made in the present suit was dismissed, is also without any merit. A perusal of Ex.D3, i.e., decision dated 29.3.1994 in Civil Suit No.698 of 1993 between the parties, defendant has made a statement that he had purchased 6 K-16 Mls of land from Om Parkash who is brother of the plaintiff vide sale deed dated 11.6.1991 and he is in possession of this much land as co-sharer along with plaintiffs. Since the suit land is not partitioned till today and he further stated that till the finalization of partition proceedings, he will not interfere in the remaining suit land which is in possession of the plaintiffs being co-sharer. On this statement of the defendant, the suit of the plaintiff- respondents was ordered to be disposed of having become infructuous. Civil Suit No.1249 of 16.7.1992 was dismissed as withdrawn as partition application between the parties was pending. In the said suit, the plaintiff-respondents has challenged that the sale deed dated 11.6.1991 executed by Om Parkash in RSA No. 1437 of 2004 5 favour of defendant-appellant is null and void. Thus from the above, it cannot be held that the present suit filed by the plaintiff-respondents is barred by resjudicata as the earlier litigation between the parties is of no consequence as in these proceedings, it has not been admitted by the plaintiff-respondents that the appellant was put into actual physical possession of the disputed khasra numbers. Rather on the other hand vide Ex.D3, the appellant has made an admission to the effect that he is in possession of land measuring 6 kanals 16 marlas as co-sharer along with plaintiffs since the suit land is not partitioned. In fact, in view of the statement of the appellant himself, he cannot be held to be in exclusive possession of the disputed khasra numbers. The case law cited by both the parties is not in dispute. The law is settled that a co-sharer when in actual physical possession of a joint holding, can retain the same, to the exclusion of other co-sharer, till the share are determined on partition. Reliance can be placed on authority Satish Chander Sethi Vs. M/s Chuni Lal Sunder Lal 1995 PLJ 523, where it was held as follows: “Thus, whereas the authorities are consistent that each co-sharer has a right in each parcel of land till it is partitioned have all the same held that a co-sharer in the exclusive possession as a right to maintain it and enjoy the property till the same is partitioned by metes and bounds. In the present case the grouse of the plaintiff is that the defendant is interfering in their physical cultivating possession on the suit land and wants to take the possession of the khasra number in dispute by dispossessing them. As observed above that the plaintiff have been able to prove their actual, physical cultivating possession on the suit land and the defendant on the other hand has failed to establish his actual physical cultivating possession on the suit land and that of his vendor. Therefore, the plaintiff are entitled to seek the relief of injunction against the defendant restraining him from interfering in their actual physical possession on the suit land till the land is partitioned by metes and bounds. There is no dispute over the preposition of law that no injunction is available to a co-sharer against the co-sharer to enjoy the rights on the suit land. However, a co-sharer when in possession of the land to RSA No. 1437 of 2004 6 the exclusion of the other co-sharer has right to remain in occupation of the same till the land is partitioned and that the acts of the occupier co-sharer are not determined to the rights of the other co-sharer. In this regard,reliance can be placed in the titled as Sarla Kumari Vs. Santosh Kumari- CCC 1997 (1) 168 relied upon by the counsel for the defendant/respondent. Admittedly, the land in dispute is joint and has not been partitioned. Defendant/respondent has become a co-sharer by virtue of the sale deed dated 11.6.91 in his favour executed by Om Parkash the erstwhile co-sharer in the suit land. So in view of this, the defendant being a co-sharer/co-owner has an interest in the whole suit land and also in every parcel of the suit land. His possession shall be deemed to be in each parcel of the land. He cannot get his specific possession in the suit land on partition of the land not otherwise or he can claim a decree for declaration for joint possession with the plaintiff/appellant un-authorisedly or forcibly except in due course of law. The controversy in the case in hand is whether appellant is in possession of specific khasra numbers of the land in dispute or not which is a question of fact. A finding of fact has been recorded by the lower Appellate Court to the effect that the appellant is not in actual physical possession of the disputed khasra numbers. Learned counsel for the appellant was unable to challenge the finding of fact so recorded by the lower Appellate Court. The said finding of fact as to possession of the parties is a question of fact which cannot be interfered in second appeal under Section 100 CPC. It would not give rise to any question of law unless it is shown that findings recorded by the court below are based on no evidence or are perverse to the extent that no original person available would reach the conclusion recorded by the courts below. I am supported in my view by a judgment of this Court in the case of Dharambir Versus Suraj Bhan 2003(3) R.C.R. (Civil) 216. No substantial question of law arises in the present appeal. RSA No. 1437 of 2004 7 For the reasons recorded above, I find no merit in the appeal, the same hereby dismissed. November 6, 2008 (RAKESH KUMAR GARG) nk JUDGE