Regular Second Appeal No.4440 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4440 of 2009 (O&M) Date of Decision:-21.7.2011 Mange Ram ...Appellant Versus Smt.Shanti Devi ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Rakesh Gupta, Advocate for the appellant. Mr.N.S.Dandiwal, Advocate for the respondent. M ehinder S ingh S ullar , J . (Oral) The matrix of the facts, which requires to be noticed, for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that Shanti Devi, daughter of Jawala Dass respondent-plaintiff (for brevity “the plaintiff”), filed the suit seeking a decree for permanent injunction, restraining Mange Ram son of Duni Chand appellant-defendant (for short “the defendant”) from encroaching upon and forcibly obstructing the plaintiff from raising construction over the plot, bearing No.182/11, situated near Jat School, Kaithal, inter-alia pleading that she purchased the plot measuring 288 square yards 7 square feet 12.6 square inches as shown in site plan, from one Lila Singh son of Baggar Singh, by virtue of registered sale deed dated 12.3.1981 (Ex.P2). This plot was part of land measuring 17 kanals 8 marlas, comprising in khewat No.126 min, Khatauni No.186 min, Khasra No.536. It was claimed that plaintiff filed the suit for possession by way of partition, which was decreed and a preliminary decree dated 2.4.1996 was passed in her favour. In the wake of final decree dated 26.10.1998, the plot bearing No.182/11, measuring Regular Second Appeal No.4440 of 2009 (O&M) -2- 200 square yards, was allotted to the plaintiff and consequently, its possession was also delivered to her on 20.2.1999, through warrant of possession Since then, she is owner and in possession of the same, but the defendant intends to dispossess her, without any legal right. After the delivery of possession of indicated plot to the plaintiff, the exparte partition decree was stated to have been set aside. 2. Levelling a variety of allegations and narrating the sequence of events, in all, according to the plaintiff that she is owner and in possession of the plot, bearing No.182/11, but the defendant intends to dispossess her, without any legal right. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of permanent injunction against the defendant, in the manner as described hereinabove. 3. The defendant contested the suit and filed the written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, cause of action and locus standi of the plaintiff. The case set up by him, in brief in so far as relevant, was that one Radha Krishan son of Mool Chand was co-sharer in joint property for the last more than 23 years. He had sold away the plot to the defendant, by means of registered sale deed dated 12.12.2003 (Ex.D2). Thus, he is owner and in possession and the plaintiff has never been in possession of the plot in question. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for adjudication of the case :- 1. Whether the plaintiff is the owner in exclusive possession of the plot in dispute bearing no.182/11, as alleged ?OPP 2. If issue no.1 is proved, whether the defendant is liable to be restrained from encroaching upon the same and or obstructing the plaintiff from Regular Second Appeal No.4440 of 2009 (O&M) -3- raising construction thereon ?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiff has concealed the true and material facts from the court, if so, to what effect ?OPD 5. Whether the suit is false and frivolous and same is liable to be dismissed with special costs ?OPD 6. Relief. 5. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 6. The trial Court, after taking into consideration the entire evidence on record, partly decreed the suit of the plaintiff, by virtue of impugned judgment and decree dated 29.4.2008. 7. Aggrieved by the decision of the trial Court, the defendant filed the appeal, which was dismissed as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 3.6.2009. 8. The appellant-defendant still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present appeal. That is how I am seized of the matter. 9. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant appeal in this context. 10. Ex facie, the argument of the learned counsel that since the plaintiff is not proved to be owner and in possession of the disputed plot, so, the Courts below committed a legal mistake in partly decreeing her suit, sans merit. 11. As is evident from the record that both the parties are reiterating their claim over the plot in dispute, by means of their respective registered sale deeds (Ex.P2 and Ex.D2). It is not a matter of dispute that the parties to the lis, are co/joint owners and in possession of the property in dispute. Suit for partition is still pending between the parties. As the plaintiff obtained the exclusive possession of the disputed plot, in pursuance of the decree in a suit for partition, therefore, she Regular Second Appeal No.4440 of 2009 (O&M) -4- is entitled to protect her possession, until and unless the joint property is legally partitioned between the parties. 12. The trial Court, after taking into consideration the entire material on record, rightly partly decreed the suit of the plaintiff. Not only that, the decision of the trial Court was upheld by the first Appellate Court, by way of impugned judgment dated 3.6.2009, the operative part of which is (paras 13 & 14) as under:- “Thus, it would be imperative to analyze the controversy in hand on the basis of factum of possession. The plaintiff/respondent herein has asserted in her testimony being PW-2 that she could not take possession of the plot on the basis of sale deed dated 12.3.1981 Ex.P-2, until the suit for possession by way of partition was decreed in her favour on 2.4.1996 when preliminary decree was passed in her favour. Suffice it to say that ultimately the final decree was passed in her favour on 26.10.1998, and consequently through warrant of possession Ex.P-1 which was executed on 20.2.1999, the possession of the area measuring 200 sq. yards was given to her. Thus, it has been urged on her behalf that she is in possession by following the due process of law, when the final decree was ultimately executed on 20.2.1999. The factum of both the parties having rattled themselves in an earlier round of litigation is the conceded position. The preliminary decree as well as the final decree dated 2.4.1996 and 26.10.1998 respectively was ultimately set aside, is a further proved fact. Therefore, the legal status with regard to the suit property is that it is a part of a joint land, in which the plaintiff/respondent herein, the vendor of the defendant/appellant herein, and the defendant/appellant herein himself are the co-owners, and thus, in these circumstances, the possession of the defendant/appellant herein by virtue of sale-deed dated 12.12.2003 Ex.D-2, can only be construed as possession in the capacity of a co-sharer. When the earlier decree was set aside, and the matter was adjudicated afresh, then again the preliminary decree Ex.D-7 was passed on 4.1.2003, on the basis of the judgment dated 4.1.2003 Ex.D-6. In these circumstances, the possession of the plaintiff/respondent herein in pursuance to the warrant of possession Ex.P-1 dated 20.2.1999, on the basis of earlier final decree dated 26.10.1998, just pale into insignificance. It attires no legal status. In this scenario the possession of the plaintiff/respondent herein by virtue of sale-deed dated 12.3.1981 Ex.D2 is also the possession in the capacity of a co-sharer. Therefore, in Regular Second Appeal No.4440 of 2009 (O&M) -5- legal parlance, the possession of both plaintiff/respondent herein and defendant/appellant herein, is in law the possession in the capacity of a co-sharer. The Hon'ble Division Bench of our Hon'ble High Court in case of Sant Ram Nagina Ram versus Daya Ram Nagina Ram AIR 1961 Punjab 528, succinctly sets out the inter se rights and liability of a co- sharers. It was held that when a co-sharer sells his share or any portion thereof, in the joint holdings and puts the vendee into possession of the portion in his possession, what he transfer is his right as a co-sharer in the land and the right to remain in its exclusive possession, till the joint holding is partitioned amongst all co-sharers. This Division Bench Judgment has been later on approved by the Hon'ble Full Bench of our Hon'ble High Court in Bhartu Versus Ram Saroop 1981 PLJ 204 and later on by the Hon'ble Larger Bench of our own Hon'ble High Court in Ram Chander versus Bhim Singh 2008 (3) PLR 747. In the flash back of this legal position both the plaintiff/respondent herein as well as the defendant/appellant herein having proved their respective possession in the joint land, in the capacity of a co-sharer, by virtue of respective sale- deeds in their faovur, are entitled to protect their respective possession. The possession of one co-sharer in law, is deemed to be possession of all the co-sharer, and in each and every co-owner has every right to protect the land in his possession, from any encroachment, from any quarter. In the present case, the plaintiff/respondent herein has not been able to establish her exclusive possession concededly after the passing of preliminary decree dated 4.1.2003 Ex.D7 rendered in civil suit no.599 of 1986, the final decree wherein is yet to be passed. Although, prior thereto, as per conceded stand, she was put in possession through due process of court, and on the basis of warrant of possession Ex.P1. It has been further a conceded fact that no restitution petition has been filed against the plaintiff/respondent for claiming restitution of possession. In these circumstances, I do not see any illegality committed by the learned lower court in the appreciation of evidence and the legal position on the subject in controversy. The learned lower court has rightly decreed the suit partially and dismissed the same partially. Thus, the findings of the learned lower court on issues no.1 and 2 are hereby affirmed.” 13. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the Regular Second Appeal No.4440 of 2009 (O&M) -6- right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, both the courts below have recorded the above-mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. 14. No other meaningful argument has been raised by the learned counsel for the appellant to assail the findings of the Courts below in this regard. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant, in this relevant direction, have already been duly considered and dealt with by the Courts below. 15. Sequelly, the entire case revolves around the re-appreciation and re- appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 16 No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 17. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 21.7.2011 Judge AS Whether to be referred to reporter?Yes/No