IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 266 of 1998. Reserved on : 13.3.2009 Decided on: 20.3.2009. K.P.Singh alias Karanvir .…Appellant. Versus Sewak Ram & Others .. ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes. For the Appellant : Mr. Seema Guleria, Advocate. For the respondents : Mr. Baldev Singh Attri, Advocate for respondents No.1 & 2. Mr. Onkar Jairath, Advocate for respondent No.4. Kuldip Singh , Judge This appeal has been directed against the judgment, decree dated 8.6.1998 passed by the learned Additional District Judge, Shimla in Civil Appeal No. 16-S/13 of 1993, setting-aside the judgment, decree dated 30.12.1992 passed by the learned Sub Judge 1st Class (I), Shimla in C. Case No. 50/1 of 1987. The respondents 1 to 3 were the plaintiffs, appellant was defendant No.1 and respondent No.4 was proforma defendant No.2 in the suit. 2. The facts, in brief, are that respondents 1 to 3 filed a suit for permanent prohibitory injunction restraining the appellant from interfering and raising construction on land comprised in Khasra Nos. 352, Mouza Gharot. The case of the respondents 1 to 3 is that they and respondent No.4 are joint owners in possession of the suit land. On 21.7.1987 the appellant had 1 Whether reporters of Local Papers may be allowed to see the Judgment ? .Yes. started interference on the suit land when he started digging the suit land with a purpose to raise construction thereon. He was requested not to do illegal interference on the suit land but he did not oblige the respondents 1 to 3 and, therefore, the suit was filed. 3. The suit was contested by the appellant by filing a written statement in which he took preliminary objections of maintainability, lack of cause of action, non-joinder of necessary parties, estoppel and acquiescence. On merits, he pleaded that joint holdings of respondents 1 to 3 and respondent No.4 was partitioned among them prior to the year 1980 and thereafter a memorandum of partition was executed on 17.8.1980. The suit land had fallen into the share of respondent No.4, who had sold the suit land to appellant for consideration and had also delivered possession of the suit land to him. The entries in the revenue record showing the respondents No.1 to 3 and respondent No.4 as joint owners in possession of the suit land are wrong and against the factual position on the spot. The appellant had already constructed a house over the suit land prior to the filing of the suit by spending huge amount. In replication, the respondents 1 to 3 had reiterated the stand. The learned trial Court had framed the following issues:- 1. Whether the plaintiffs and proforma defendant are joint owners in possession of the suit land as alleged? OPP. 2. Whether the suit is not maintainable in the present form as alleged? OPD . 3. Whether the plaintiffs have no cause of action? OPD. 4. Whether the suit is bad for non-joinder of necessary parties? OPD. 5. Whether the plaintiffs are estopped from filing the suit? OPD. 6. Whether there had been a private partition between the owners as alleged? OPD. 7. Whether the plaintiffs are entitled for relief of mandatory injunction as alleged? OPP. 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 8(A). Whether Sh.Molak Ram proforma defendant has sold Khasra No. 352 to the defendant, if so its effect? OPD. 9. Relief. The issues No.1, 4, 7, & 8 were answered in negative and issues No. 2, 3, 5, 6 and 8(A) were decided in affirmative and ultimately the suit was dismissed on 30.12.1992. In appeal on 8.6.1998 the learned Additional District Judge set-aside the judgment, decree dated 30.12.1992 of the learned trial Court and held that respondents No. 1 to 3 are entitled to vacant possession of the land by demolition of structure raised on Khasra No.352/1 and also restrained the appellant not to cause any interference on the land comprised in Khasra No. 352, hence this appeal which has been admitted on the following substantial questions of law:- 1. Whether a co-sharer in exclusive possession of any portion of an undivided holding not exceeding his own share, can transfer his share to third party and third party can maintain its possession over the said land as co- sharer after the transfer? 2. Whether a mandatory injunction in the facts and circumstances of the case where the party has spent considerable amount on the development of land and raised construction, can be passed by the Court? 3. Whether a document only marked at the time of recording evidence but its execution has been duly proved, can be relied upon as valid evidence in the case? 4. Whether the private partition effected between the parties and parties are in separate possession over the land, which has been allotted to them and it has not been confirmed and entered in the revenue record under Section 135 of the Himachal Pradesh Land Revenue Act, has to be accepted by the Court, if so, its effects? 4. I have heard Ms. Seema Guleria, Advocate, learned counsel for the appellant and Mr. Baldev Singh Attri, Advocate, learned counsel for the respondents No. 1 & 2 and Mr. Onkar Jairath, Advocate, learned counsel for respondent No.4 and have also gone through the records. The learned counsel for the appellant has submitted that the joint holding of respondents No.1 to 3 and respondent No.4 was partitioned and the suit land had fallen into the share of respondent No.4. The memorandum of partition was executed on 17.8.1980. The respondent No.4 vide Ex.DW-5/C dated 7.5.1979 agreed to sell the suit land to appellant and handed over the possession of the suit land to the appellant. The respondent No.4 could not discharge mortgage amount with respect to the suit land, therefore, actual sale deed of the suit land could not be executed and respondent No.4 executed agreements Ex.DW-5/D dated 30.7.1981, Ex. DW-5/E dated 3.7.1985, Ex. DW-5/F dated 31.12.1986, Ex. DW-5/B dated 11.8.1987 and Ex. DW-5/A dated 7.8.1989 in favour of the appellant of the suit land. The appellant thereafter developed the land and constructed his house on the suit land before filing of the suit. The suit land fell into the share of respondent No.4 in partition among the co-sharers who had every right to sell the suit land to appellant and hand over to him possession of the suit land. The revenue entries showing the respondents No.1 to 3 and respondent No.4 jointly owners in possession of the suit land are wrong. The learned Additional District Judge has not properly appreciated the legal position. He has mis-construed, mis-interpreted the evidence. 5. On behalf of the respondents No.1 & 2 it has been submitted that appellant is a stranger, the respondent No.4, a co-sharer could not sell specific portion to appellant. The appellant has not placed on record the sale deed in his favour of the suit land. On the basis of the aforesaid agreements, the appellant has no right, title or interest in the suit land except, without conceding, a right to enforce the agreements specifically. The partition among the co-sharers of the suit land has not been established. The learned Additional District Judge has rightly appreciated the material on record. In brief, the learned counsel for the respondents No.1 & 2 has supported the impugned judgment, decree. Substantial questions of law No.1 to 4: 6. The substantial questions of law No.1 to 4 are inter-connected, therefore, all of them are being taken up together for decision. The case of the appellant is that respondent No.4 Molak Ram was co-sharer with others and there was a partition among the co-sharers and suit land fell into the share of Molak Ram from whom appellant has purchased the suit land. The appellant for purpose of partition has relied on mark ‘A’ dated 17.8.1980. The learned counsel for the appellant has submitted that the Courts below have mis-construed Section 135 of the Himachal Pradesh Land Revenue Act, 1954 (for short ‘Act’). It has been submitted that merely private partition has not been affirmed under Section 135 of the Act that does not mean no partition has taken place among the co-sharers. This submission of the learned counsel for the appellant is secondary what is significant is whether any partition has taken place vide mark ‘A’. The perusal of mark ‘A’ would show that the land of village Shalori was divided into three shares as indicated in the document. Mark ‘A’ does not indicate that land of village Shalori was earlier partitioned and lateron vide mark ‘A’ memorandum of partition was recorded. The land has been allegedly partitioned through mark ‘A’, therefore, in absence of registration of mark ‘A’, it cannot be read in evidence and on the basis of mark ‘A’ it cannot be said that the land was partitioned among the co-sharers. Once the land could not be said to be legally partitioned among the co-sharers on the basis of mark ‘A’, then affirmation of partition allegedly privately affected vide mark ‘A’ under Section 135 of the Act does not arise. DW-5 Molak Ram, in his cross-examination has categorically admitted that the land is still joint. Therefore, even if mark ‘A’ is taken into consideration, the suit land remains joint. 7. The appellant has not placed on record the sale deed of the suit land in his favour. He is claiming suit land on the basis of agreements Ex.DW-5/A, Ex.DW-5/B, Ex.DW-5/C, Ex.DW-5/D, Ex.DW-5/E and Ex.DW- 5/F. The first agreement is Ex.DW-5/C and the last agreement is Ex.DW- 5/A. Section 54 of the Transfer of Property Act, 1882 provides that a contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself create any interest in or charge on such property. The appellant on the basis of aforesaid agreements could file a suit for specific performance of contract for enforcing those agreements but the aforesaid agreements would not create any interest of appellant in the suit land. In other words, the appellant has no right on the suit land. The position of appellant cannot be equated with that of co-sharer on the suit land. 8. The learned counsel for the appellant has relied Chandan Singh Vs. Santa Singh, AIR 1950, Pepsu 5, on the point that a co-sharer in his established possession of any portion of an undivided holding not exceeding share could not be disturbed in his possession until partition and for that reason the possession of a transferee from such a co-sharer could also not be disturbed till such time. The appellant has failed to establish that he has purchased the suit land from co-sharer Molak Ram, therefore, he cannot step into the shoes of Molak Ram and claim himself to be a co-sharer on the suit land, hence, Chandan Singh’s (supra) relied by the learned counsel is not applicable in the present case. The learned counsel has also taken help from Prabhoo Vs. Doodh Nath and others, AIR 1978, Allahabad, 178. In that case, it has been held that one co-owner has not in law any right to appropriate land to himself out of joint land against the consent of his co-owners. In that case, the suit was instituted soon after the construction was started by co-owner on the joint land. It was held that plaintiff was rightly granted mandatory injunction directing removal of the construction. This judgment supports the case of the respondents No.1 to 3. Rahim Sheikh Vs. Samad Sheikh, AIR 1972, J.& K.,7 has been relied by learned counsel for respondent for the principle that co-sharer who is in actual or constructive possession of joint holding can transfer to the extent of his share in the joint holding. There is no dispute to this proposition but in the present case, the appellant has failed to prove sale of disputed land by Molak Ram in his favour. The learned counsel has relied R.S. Muthuswami Gounder Vs. A. Annamalai and others, AIR 1981, Madras, 220, in which after applying the principle of acquiescence, compensation was awarded instead of recovery of vacant possession of the property. In the present case, the pleaded cause of action in the plaint is of 21.7.1987 and the suit was filed on 28.7.1987. It is common knowledge that it takes some time for filing a simple suit for injunction inasmuch as some papers are to be collected and before that aggrieved party gives a chance to other side not to take law in his own hands and as a last resort the suit is filed . In my opinion, in the facts and circumstances of the case, 7 days time taken by respondents 1 to 3 for filing suit cannot be termed as an act of acquiescence on their part, hence R.S. Muthuswami Gounder’s (supra) is not applicable in the present case. 9. The appellant in the present case has created problem for himself by denying the title of respondents No.1 to 3 on the suit land by pleading that suit land fell to the share of Molak Ram in partition, who sold the suit land to him. In para 1 of the written statement, he has pleaded that respondents No.1 to 3 (plaintiffs) have ceased to have any right, title or interest on the land possessed and owned by appellant (defendant). In Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram, AIR 1961 Punjab, 528, it has been held as follows: “ As the defendants had openly denied co-ownership and had asserted their exclusive title on the false plea of previous partition and had continued to raise the structure despite the protestations of the plaintiff, and in disregard of the temporary injunction issued, the decree passed by the trial Court for demolition of the structure and restraining the defendants from making any structure thereon in future, is manifestly just.” 10. In the present case, the appellant has denied the title of respondents No.1 to 3 on the suit land and has asserted his exclusive title on the false plea of previous partition and sale of the suit property by respondent No.4 in his favour. The suit was filed on 28.7.1987 on the basis of cause of action dated 21.7.1987. The learned Additional District Judge has recorded a finding of fact that the construction work of the house was closed in the month of July / August, 1987. It has also been observed that possibility of the appellant raising such construction after the institution of the suit irrespective of the execution of work stayed by the learned trial Court cannot be ruled out. It has not been pointed out that the learned lower Appellate Court has ignored important evidence and considered inadmissible evidence. The evidence in the second appeal cannot be re-appreciated. In these circumstances, it cannot be said that the learned Additional District Judge has committed an error of law in decreeing the suit of the respondents No.1 to 3 for prohibitory as well as mandatory injunction. The substantial questions of law No.1 to 4 are answered against the appellant. 11. No other point was urged. 12. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. March 20, 2009. (GR)