RSA No. 1918 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1918 of 1984 Date of Decision: September 03 , 2009 Dalip Singh and others ...... Appellants Versus Jaswant Singh and others .......... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. M.L.Saggar, Senior Advocate with Mr. G.S.Brar and Mr. J.S.Dhaliwal, Advocates for the appellants. Mr. D.R.Mahajan, Advocate for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgment of the learned Lower Appellate Court partly modifying that of the trial court and thereby maintaining that the plaintiff-respondents are in possession of the land in dispute even while holding their possession to be that of co-sharers. The plaintiff-respondents had purchased 1/3rd of land from one set of legal representatives of the original owner Balwant Singh. They had been put in possession of 16 kanals 3 marlas of land comprised in Khasra Number 3025/1332 to 1340 by a sale deed dated 17.7.75. On 19.8.75 notification under Section 4 was issued proposing to acquire 7 kanals 7 marlas of this land for respondent No.5. The respondents filed the suit RSA No. 1918 of 1984 2 stating that they had purchased the land after the partition among the original owners and that the notification only described the land as 7 kanals 7 marlas from Khasra Number 3025/1332 to 1340 min West. Further allegations were that they had moved objections under Section 5-A claiming that the appellants had purchased the land after the notification and, therefore, the purchase made by the respondents should be kept out of the purview of the acquisition. Their further case was that the Collector accepted their claim and passed the award whereby he held that the land owned by some other co-owners had been acquired and directed payment of compensation to those persons. It was further argued that those persons actually took the compensation amount. Further case of the plaintiff- respondents was that after the award when the possession was taken with the respondent No.5, the Kanungo wrongly sought to give possession of some portion of the land purchased by them. Yet another allegation made was that by order dated 28.11.78 the Assistant Collector 1st Grade had wrongly changed the Tatima thereby illegally sanctifying the report of the Kanungo dated 18.11.75. In conclusion they prayed for a decree for declaration that they had become owners of the land purchased by them and for an injunction restraining the appellants and the other defendants from interfering in their possession over the land in dispute. The trial Court decreed the suit while, as mentioned above, learned Lower Appellate Court modified the decree holding that even though the plaintiff-respondents were in possession of 16 kanals 3 marlas of land consequent to a sale deed in their favour yet their plea of partition had not been established and thus held them to be only co-sharers in possession. Learned counsel for the appellants raised two questions of law. RSA No. 1918 of 1984 3 His first argument is that the Civil Court has no jurisdiction. It is his contention that the dispute relates to the measurements of the land and thus the only remedy for the plaintiff-respondents No. 1 to 3 would be under Section 18 of the Land Acquisition Act. In my opinion the dispute is not regarding the measurement but regarding location and thus it cannot be held that the only remedy was under Section 18 of the Act. The second question of law raised by learned counsel is that once the declaration sought by the respondent-plaintiffs(that they were owners in possession of specific land) was declined and it was held that they were co-sharers, no perpetual injunction could have been granted restraining the other co-sharers (including the State of Punjab) from interfering in their possession. At this stage it would be necessary to refer to a subsequent development also. By CM No. 6873-C of 1998 the appellants moved an application for temporary injunction seeking a stay of their dispossession. On 27.7.99 the following order was passed:- “In this application, prayer made is to stay the operation of judgment and decree of the Courts below and for grant of ad interim injunction restraining the plaintiffs-respondents from interfering in the possession of the appellants over land measuring 43 kanals 8 marlas, i.e. part of the suit land. Separate returns to the applications have been filed by respondents 1 to 3 and 5 to 7. After hearing the learned counsel for the parties and going through the record, I find that appellants are not entitled to the relief sought for in this application. RSA No. 1918 of 1984 4 Both the Courts below have held plaintiffs/respondents to be in possession of the suit land. The learned trial Court granted a decree for declaration that the plaintiffs are owners of the suit land. In appeal, first appellate Court modified the decree to the extent that plaintiffs are held to be co-owners but as far as the finding of the trial Court that they are in exclusive possession, the same has been affirmed. The decree has also been granted in favour of plaintiffs that defendants have no right to interfere with their possession. I do not find any prima facie case in favour of the applicants and therefore,the prayer made in this application is declined. It is, however,made clear that applicants shall be entitled to take possession in case the land falls to their share in partition proceedings.” It is not disputed that subsequent to that application for partition was filed and the proceedings are pending. With regard to his plea regarding injunction learned counsel has relied upon the case of Bhartu V. Ram Sarup reported as AIR 1981 P.L.J. 204 to contend that no injunction can be granted against a co-sharer. He has further argued that on the basis of the finding regarding 'exclusive possession' the respondent-plaintiffs have succeeded in getting the land in dispute mutated and subsequently allocated in their favour. In view of the legal position, in my opinion, the interest of justice would be met if it is declared that the mutation and the findings regarding exclusive ownership/possession would not be binding upon the RSA No. 1918 of 1984 5 revenue authorities while making final partition of the land in dispute. However, parties are directed to maintain status quo regarding possession till the finalisation of partition proceedings. Consequently this appeal is disposed of with the modification that the possession would follow the finalisation of partition proceedings. (AJAY TEWARI) JUDGE September 03, 2009 sunita