R.S.A. No. 2228 of 2008 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2228 of 2008 (O&M) Date of Decision: May 2, 2011 Surjit Singh …..Appellant Vs. Darshan Singh and another …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Malkeet Singh, Advocate for the appellant. Mr.B.S. Jaswal, Advocate for the respondents. -.- M.M.S. BEDI, J. Plaintiff has preferred the present second appeal against the judgment and decree passed by the Courts below dismissing the suit of the plaintiff- appellant for permanent injunction restraining the defendant- respondents from taking forcible possession of the land measuring 8 marlas in Khasra No.64/26, Khewat Khatauni No. 293/585 as per Jamabandi for the year 2000-01 as the plaintiff had purchased the property in dispute from R.S.A. No. 2228 of 2008 (O&M) [2] Sukhwant Singh vide registered sale deed dated June 29, 1998. Though there is no passage in the said 8 marla of land, the defendant- respondents wants to carve out a passage through the property in dispute. The defendant- respondents have contested the suit claiming that Sukhwant Singh was not the owner of the suit land. The suit land in dispute is a common place left for common well and entry of the land in the jamabandi is Gair Mumkin Ahata Chah and Sukhwant Singh and Randhir Singh sons of Piara Singh were co-sharers upto 1/18th share out of which Sukhwant Singh is co-sharer upto 1/2 share as such Sukhwant Singh is owner of 1/36th share out of the total land measuring 51 marlas. Sukhwant Singh was owner of only 1 marla and few sarsai. So far as the land of the defendant- respondents is concerned, they had purchased the said land out of Khasra No. 63//10 (8-0) from Mohinder Kaur wife of Piara Singh, adjoins the disputed land which is a passage bearing khasra No. 640 (0-5). The defendant- respondents took up the plea that the plot in dispute is approached through a passage. Both these passages were left for the co- sharers who used the property for common purposes for the use of well. It was also claimed that the property in dispute is the only place left for the land of defendant- respondents to enter into and there is no other way for the defendants to go to their land. Defendants claimed that in view of the existence of passage in the suit land, the defendants will suffer an irreparable loss if the passage is revoked. The Courts below arrived at a conclusion that the plaintiff on purchase of land i.e. share of Sukhwant Singh could be considered to be co-owner in possession of the property only R.S.A. No. 2228 of 2008 (O&M) [3] to the extent of share of Sukhwant Singh. The plaintiff alone is not in exclusive possession of the property in dispute as such it was held that the plaintiff is not entitled to decree of permanent injunction. The Courts below on the basis of the evidence produced on the record by the plaintiff i.e. the site plan Ex.P2, Jamabandi for the year 2000- 01 Ex.P-3 and statements of PW 3 and PW4 and the other documents arrived at a conclusion that the plaintiff had purchased the property from Sukhwant Singh whereas the defendant had also purchased 8 marlas of land in Khasra No.63//10 from mother of Sukhwant Singh, namely, Mohinder Kaur. The land purchased by the defendants is adjacent to the land purchased by the plaintiff, has got a passage in khasra No. 640 (0-5), through which the defendants approaches khasra No. 63//10. The Courts below arrived at a conclusion that in case the defendant- respondents are restrained from using the rasta in Khasra No.640 (0-5), no passage will be left for approaching the land of the defendant- respondents. A perusal of the site plan Ex.P2 reflects that the defendants are owner of their land situated in Khasra No. 63/2/2, 3, 4, 5/2, 5/3, 6, 7, 8/1, 9/1 and 14. The defendants by producing cogent evidence on the record has been able to prove that plaintiff wants to curtail the rights of the defendant- respondents to the user of the rasta in dispute which leads to the land of the defendant- respondents. The Courts below have given a concurrent finding of fact that the land in dispute is a common land for well and is a gair mumkin Chah (well). It has also been established as a finding of fact that R.S.A. No. 2228 of 2008 (O&M) [4] the property in dispute is a passage for entry into the land of defendant- respondents situated in Khasra No.63//10 (8-0). Sh.Malkeet Singh, learned counsel for the plaintiff- appellant has vehemently contended that the appellant had admittedly purchased land out of Khasra No.26 and rect. No. 64 to the extent of 8 marlas and the land comprised in Khasra No.26 is recorded as Gair Mumkin Ahata Chah. A wrong inference has been drawn by the Courts below that Mohinder Kaur, mother of Sukhwant Singh, vendor of property, sold to defendant had become co-sharer. As a matter of fact, respondent No.1 had purchased land out of rect. No.63 whereas the land in dispute is in rect. No.64 as such respondent No.1 cannot become co-sharer with the appellant. He placed reliance on judgment of Inder Singh Vs. Om Parkash, 1990 (1) RRR 32. In the said judgment, a co-sharer had filed a suit for possession by pre- emption when the agriculture land had been sold in specific killa numbers and rect. numbers. It was held that when a co-sharer sells share out of defined part of joint land but not out of whole of their land, the sale will not be of a share out of joint land under Section 15 (1) (b)of the Punjab Pre- emption Act. The law laid down regarding rights of co-sharers in Bhartu Vs. Ram Saroop, 1981 PLJ 204 had been distinguished to be not applicable in the said case. I have carefully considered the contentions of Mr.Malkeet Singh to determine the status of the plaintiff and respondents regarding the land purchased by them. The sale deed Ex.P1 executed by Sukhwant Singh son of Piara Singh shows that though specific khasra numbers are R.S.A. No. 2228 of 2008 (O&M) [5] mentioned in the sale deed transferring 8 marlas in Khasra No. 64/26 in min number measuring 0 k 8 m but it is mentioned that it is out of the joint land. Nothing has been brought on the record indicating that the mother of Sukhwant Singh, namely, Mohinder Kaur had partitioned the land before the sale of the land to the defendant- respondents. Present plaintiff and defendants being vendees from the joint owners, partition having not been established; will have a right in the specific property purchased by them as co-sharers. In view of the property in dispute with the suit land having been held as rasta and gair mumkin ahata chah, the Courts below have rightly dismissed the suit of the plaintiff holding that the plaintiff is not entitled to seek injunction. Ex.P-3 is a site plan which clearly indicates that the land in dispute is a passage between the lands purchased by plaintiff and respondents. Property of plaintiff- appellant is joint in green colour and the property of defendant- respondents is shown in red colour. It appears that the small chunk of land i.e. the property in dispute has been purchased by the plaintiff to get the exclusive right on the rasta and through injunction the plaintiff wants to block the passage of the defendant- respondents. No substantial question of law is involved. Dismissed. May 2, 2011 (M.M.S.BEDI) sanjay JUDGE