R.S.A. No. 339 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 339 of 1990 Date of decision: 21.1.2009 Sarwan Singh and others ....Appellants Versus Baldev Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Amarjit Markan, Advocate, for the appellants. ***** VINOD K. SHARMA, J The challenge by way of this regular second appeal is to the judgments and decree dated 26.7.1985 and 20.11.2989 passed by the learned Courts below decreeing the suit filed by the plaintiff/respondents for permanent injunction restraining the defendants from interfering with possession of the land of the plaintiffs forcibly and illegally. The plaintiffs Baldev Singh, Maghar Singh and Labh Singh brought a suit for perpetual injunction to restrain the appellant/defendants from obstructing them from entering into the disputed land measuring 26 kanals 19 marlas forcibly and illegally on the plea that they are its co-sharers and in possession to the extent of 3/4th share. Notice of the suit was given. R.S.A. No. 339 of 1990 -2- A joint written statement was filed by the appellant/defendants denying that the plaintiffs were owner in possession of the land in dispute. The defendant/appellants took a plea that the defendants were owner in possession of the land having purchased the land measuring 22 kanals 19 marlas out of the disputed land from Gamdoor Singh, the forth brother of the plaintiffs, who was said to be a co-sharer and in exclusive possession of the land sold by him to the defendants out of the total khata measuring 110 kanals 14 marlas. The defendant/appellants thus, claimed that they are owner and in exclusive possession of the land purchased by them from Gamdoor Singh. Other objections with regard to maintainability of the suit were also taken. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues: - “1. Whether the plaintiffs are owners in possession of the disputed land to the extent of 3/4th share? OPP 2.Whether the defendants are owners in possession of the disputed land? OPD 3. Whether the plaintiffs have no locus standi and cause of action to institute this suit? OPD 4. Whether the suit in the present form is not maintainable? OPD 5. Whether the plaintiffs are entitled to the grant of perpetual injunction as prayed for? OPP 6. Relief.” The learned trial Court was pleased to decree the suit by deciding issue Nos. 1 and 2 in favour of the plaintiffs. The findings of the learned trial court, relevant for decision by this Court, read as under: “It is, no doubt, true that the defendants purchased specific killa numbers of land measuring 22 kanals 19 R.S.A. No. 339 of 1990 -3- marlas which is a part of the land in dispute but they cannot claim exclusive possession of the same because it is not shown that Gamdoor Singh vendee was in exclusive possession of the land comprising of killa numbers which he sold to them. That being so, the mere ipse dixit of Sarwan Singh (DW-1) that Gamdoor Singh was in exclusive possession of the disputed land before he sold it to the defendants cannot be accepted. The defendants have not examined an iota of evidence to reveal that they are in cultivating possession of the disputed land to the exclusion of the plaintiffs, who, as noticed above, are recorded to be owner in possession of the land to the extent of 3/4th share in copies of jamabandi Ex. P1 and Ex. P5 for the year 1977-78 and 1982-83 respectively and that of Khasra Girdawari Ex. P2 for the year 1982-83. As admittedly by Sarwan Singh (DW-1) in his cross-examination, mutations entered on the basis of sale deeds referred to above were not sanctioned in favour of the defendants and this fact goes a long way to show that Gamdoor Singh was not competent to sell land measuring 22 kanals 19 marlas with its specific killa numbers out of the land jointly owned by him and the plaintiffs. In this situation, the plaintiffs are, no doubt, proved and are held to be co-sharers of 22 kanals 19 marlas of land out of 1/4th share of the land jointly owned by Gamdoor Singh vendee and the plaintiffs but in my opinion, they have no right to stop the plaintiffs from continuing in possession of 3/4th share of the disputed land. The only legal remedy available to the defendants is to seek separate possession of the land to the extent they purchased it from Gamdoor Singh through an application for partition of the joint land by metes and bounds. In the light of the above discussion, I record a finding of fact that the plaintiffs are owners in possession of the disputed land to the extent of 3/4th share while the defendants are owners to the extent of 22 kanals 19 marlas of land of 1/4th share of the land jointly owned by Gamdoor Singh and the plaintiffs and that the defendants are not in exclusive possession of any part of the disputed land. Both these issues are decided accordingly." Issue Nos. 3 to 5 were also decided in favour of the plaintiffs and against the defendants. Consequently, the suit was decreed and the learned trial Court was pleased to pass a decree for perpetual injunction R.S.A. No. 339 of 1990 -4- to restrain the defendants from obstructing the plaintiffs to enter into possession of 3/4th share of the disputed land forcibly and except in due course of law. The learned lower appellate Court affirmed the finding by observing as under: - "Ex. P1 is the copy of jamabandi for the year 1977-78 showing that land measuring 97 kanals 2 marlas which also includes the suit property was jointly owned by plaintiffs (respondents before me) as well as Gamdoor Singh (Vendor of the appellants) and possession thereof has been shown as joint (of all the co-sharers). Ex. P2 is the copy of khasra girdawari for the year 1982-83 which relates to the suit property but it also records the joint possession of the respondents and Gamdoor Singh and not of any third person. No doubt, sale deeds Exs. D.1, D.2, D.3 all dated 16.11.1981 show that Gamdoor Singh sold land bearing rectangle No. 65 killas No. 24/1(1-8), 24/2(5-7), 25/7(7-7), 23/1(5-9), 23/2(1-8) rectangle No. 71 killa No. 5 min(2-0), with the defendants as per details contained therein yet they by themselves so where go to prove that Gamdoor Singh was in exclusive possession of the same and was in a position to deliver the exclusive possession to the vendees. In the absence of evidence to the fact that Gamdoor Singh was in exclusive possession of the land sold vendees (appellants before me) have no mouth to say even that they came in exclusive possession of the suit property more so when revenue record goes against the exclusive possession of Gamdoor Singh so far as suit property is concerned. Case of the vendees at the most is that of co-sharers in the joint land on the strength of sales in their favour by one of the co- sharers and nothing beyond and remedy simply is to apply for partition to get exclusive possession and not to take law in their hands to get possession on the strength of above referred sale deeds. Copy of order Ex.D4 in civil suit No. 570 of 1982 passed by Sub Judge 1st Class, Sunam on 9.11.1982 does not till the balance in any manner as respondents were not party in that suit and copy of jamabandi Ex. D5 for the year 1982- 83, it may be said, is in line with the entries in the copy of Jamabandi for the year 1977-78 Ex. P1. Fact that mutation were not sanctioned in favour of the appellants on the strength of said sale deeds apparently for the reason that Gamdoor Singh was not found in exclusive possession of the land sold also goes a long R.S.A. No. 339 of 1990 -5- way against the stand of the appellants about their exclusive possession. Without elaborating further and without discussing the oral evidence witness wise it may safely be said that findings of learned court of first instance on issues No. 1 and 2 are not infirm in any manner and thus are affirmed." Mr. Amarjit Markan learned counsel appearing on behalf of the appellants claimed that following substantial questions of law arise for consideration by this Court: - "1. Whether the findings of both the Courts below are perverse as the plaintiffs have failed to establish their exclusive possession over the suit land? 2. Whether an injunction can be issued against a co- sharer especially when the plaintiffs have failed to establish their exclusive possession over the suit land?" The contention of the learned counsel for the appellants in support of the substantial questions of law was that once the parties were shown to be in joint possession, the suit for injunction against co-sharer was not competent as by virtue of purchase from Gamdoor Singh, the defendant/appellants were to be treated to be co-sharers with plainitffs. It is also the contention of the learned counsel for the appellants that the findings recorded by the learned Courts below are perverse as the plaintiffs had failed to establish their exclusive possession. However, on consideration of matter, I find no force in the contentions raised by the learned counsel for the appellants. Though a co-sharer is not entitled to seek injunction against other co-sharers, however, this bar is not absolute. A co-sharer in exclusive possession can always maintain a suit for injunction from forceful dispossession. It is not in dispute that the appellant/defendants purchased land measuring R.S.A. No. 339 of 1990 -6- 22 kanals 19 marlas from Gamdoor Singh. Though in the sale deed specific khasra numbers were sold, however, it is well settled law that sale by co-sharer is to be treated as sale of share even though specific khasra numbers are mentioned in the sale deed. Once this established proposition of law is applied, it could not be said that Gamdoor Singh was competent to hand over the possession of the property sold without partition of the land . At best, the defendants could have obtained symbolic possession with a right to seek possession by way of partition. Thus, the possession of plaintiffs over the land in dispute was exclusive and in any case they were entitled to protect their possession over 3/4th share of the property sold. The substantial questions of law as framed, thus, deserve to be answered against the appellant/defendants. The contention of the learned counsel for the appellants that by way of judgments and decree of the learned Courts below, the right of the appellant/defendants to recover land under their ownership stands defeated, cannot be accepted. The learned Courts below have been pleased to hold that the remedy with the defendant/appellants was to seek separate possession of land to the extent they purchased it from Gamdoor Singh through an application for partition of joint land by meets and bounds. The appellant/defendants have been held entitled to seek possession of 22 kanals 19 marlas out of 1/4th share of land jointly owned by Gamdoor Singh and plaintiff/respondents. Thus, the apprehension of the learned counsel for the appellants that their right has R.S.A. No. 339 of 1990 -7- been defeated by the judgments and decree, is mis-conceived and against the positive finding recorded by the learned Courts below. For the reasons stated, there is no merit in the present appeal, it is ordered to be dismissed but with no order as to costs. (Vinod K. Sharma) Judge January 21, 2009 R.S.