Mohinder Singh vs Palwinder Singh And Others on 6 January, 2010

Punjab-Haryana High Court Punjab-Haryana High Court Mohinder Singh vs Palwinder Singh And Others on 6 January, 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 3701 of 2009 (O&M) Date of Decision: 6.1.2010 Mohinder Singh. ....... Appellant. Versus Palwinder Singh and others. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri G.S.Nagra, Advocate for the appellant. .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 1.3.2007 and 10.3.2009 passed respectively by the Additional Civil Judge (Senior Division), Gurdaspur (hereinafter described as `the trial Court') and the Additional District Judge ( Adhoc), Fast Track Court, Gurdaspur (referred to hereinafter as `the first appellate Court') whereby the suit and the appeal of the plaintiff-appellant have been dismissed. The plaintiff-appellant sought a decree of permanent injunction restraining the defendants-respondents from interfering in his R.S.A.No.3701 of 2009 (O&M) -2.... peaceful possession over the land measuring 21 kanals 14 marlas as fully detailed in the head note of the plaint. It was averred by the appellant that his father-Surain Singh was co-sharer to the extent of 4/5th share in the land measuring 89 kanals 14 marlas. The appellant had pleaded that his father had filed a suit for joint possession and the same was decreed by the Court of Additional Civil Judge (Senior Division), Gurdaspur vide judgment and decree dated 12.9.1997 and it was held therein that Surain Singh was co- sharer in the suit property to the extent of 4/5th share. It was further pleaded that Puran Singh and others, who were defendants
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Mohinder Singh vs Palwinder Singh And Others on 6 January, 2010

in that suit, filed an appeal against the said judgment and decree which was dismissed by the Additional District Judge, Gurdaspur vide judgment & decree dated 6.12.2000 upon which an appeal was preferred by them before this Court which is pending. It was then pleaded that the entire costs of the previous litigation and the land measuring 21 kanals 14 marlas which was detailed in the head note of the plaint, was given to the appellant during family settlement and thereafter,he was in actual physical possession of the same. The appellant had averred that his father-Surain Singh had executed a Will on 7.4.1998 bequeathing the entire land including the land which was subject-matter of the dispute in the civil suit filed earlier. Surain Singh was stated to have died on 7.6.2000 and thereafter, on the basis of inheritance, the appellant became the owner in possession of the suit property. The appellant had alleged that the respondents were claiming that they had purchased land measuring 5 kanals 19 marlas from Harbhajan R.S.A.No.3701 of 2009 (O&M) -3.... Singh son of Surain Singh, i.e., 1/5th share of land measuring 89 kanals 24 marlas, whereas Harbhajan Singh was not in possession of any land and the land measuring 21 kanals 14 marlas was in his (appellant's) exclusive possession. It was further alleged that the respondents by setting up sale deed dated 9.12.2004 were threatening to take forcible possession of land measuring 21 kanals 14 marlas. The appellant had pleaded that since the alleged sale in favour of the respondents had taken place during the pendency of the litigation which is pending before this Court, the same was hit by the principle of lis pendens. The respondents took up the plea that they were bona fide purchasers from Harbhajan Singh son of Surain Singh, who is real brother of the appellant and after the death of Surain Singh, the appellant became co-owner and the suit for permanent injunction against the other co-sharers was not maintainable. It was pleaded that 5 kanals 19 marlas of land was purchased vide sale deed dated 9.12.2004 and on the basis of this, they had stepped into the shoes of Harbhajan Singh and had become co-sharers. It was averred that Regular Second Appeal No.1278 of 2001 which is pending in this Court also included the suit property and, therefore, the subsequent suit was not maintainable. It was, however, admitted that Surain Singh was co-sharer to the extent of 4/5th share in the land measuring 89 kanals 14 marlas, which fact has also to be conclusively determined as the dispute is still pending by way of the Regular Second Appeal. It was pleaded that since the dispute is pending, the appellant had the remedy of approaching this Court, but, could not file the instant suit. It was averred R.S.A.No.3701 of 2009 (O&M) -4.... that mutation no.5721 regarding the estate of Surain Singh was sanctioned in favour of the appellant, Harbhajan Singh and Joginder Singh in equal shares and said Harbhajan Singh had sold the suit property by a valid sale deed dated 9.12.2004 and the respondents were in possession of the same. The plea of family settlement as raised by the appellant to claim ownership over 21 kanals 14marlas of land was denied. The following issues were framed upon which the parties led their entire evidence during the course of trial:1.Whether the plaintiff is entitled for decree of permanent injunction as prayed for?OPP 2. Whether the suit of the plaintiff is not maintainable in the present form?OPD 3. Relief.
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Mohinder Singh vs Palwinder Singh And Others on 6 January, 2010

The learned trial Court concluded under issue no.1 on the basis of revenue record that the suit land continued to be joint between the parties and since no partition had taken place, the suit for permanent injunction against the co-sharers was not maintainable and further that order dated 13.12.2001 (Exhibit D3) passed in Civil Miscellaneous Application filed in Regular Second Appeal No.1278 of 2001 reflected that the respondents were in possession of the suit property and they were directed to deposit proportionate mesne profit to the respondents therein including the appellant herein after every quarter. The sale deed dated 9.12.2004 was also considered and it was held to be good, so were the mutations Exhibit D4, jamabandi and khasra girdawari, Exhibits D7 and D8. The receipts vide R.S.A.No.3701 of 2009 (O&M) -5.... which the appellant had received mesne profit from the respondents were also produced on record and duly proved. The suit was accordingly dismissed and in appeal, the findings of the trial Court were affirmed by the first appellate Court. Hence, this Regular Second Appeal. Learned counsel for the appellant, while assailing impugned judgments, has contended that the findings recorded by the Courts below are perverse and that they have not appreciated the fact that the appellant was in possession of the suit property on the basis of inheritance and that Harbhajan Singh had no right to sell any land. He, thus, contended that the appellant being in possession, was entitled to injunction as prayed for. I have thoughtfully considered the contentions of the learned counsel for the appellant and have perused the impugned judgments. The fore-most aspect that has to be appreciated is that the father of the appellant had actually filed a suit for joint possession against Puran Singh and others regarding entire land measuring 89 kanals 14 marlas which matter is pending adjudication in R.S.A. No.1278 of 2001. In that appeal, the appellant, who is son of Surain Singh, has been awarded mesne profit on account of physical possession of the suit property which is in the hands of the respondents. There is no material on record from which it can be inferred that the appellant had inherited the entire suit property from Surain Singh. Harbhajan Singh, who is the brother of the appellant, had sold 5 kanals 19 marlas of land to the respondents vide registered sale deed dated 9.12.2004 which has been proved on record. There is nothing on record to R.S.A.No.3701 of 2009 (O&M) -6.... show that the suit property stood partitioned amongst the co-sharers. In this eventuality, the respondents, on the strength of the sale deed dated 9.12.2004 which has been acted upon and finds mention in the revenue record in the shape of jamabandi and khasra girdawari, became co-sharers in the suit property and since the land continues to be joint, the exclusive possession of the appellant thereon as pleaded and claimed by him cannot be said to have been established. His status along with the respondents, at best, can be said to be that of a co-sharer and in view of the settled proposition of law, a co-sharer, who is not in actual physical possession of a parcel of the land, can not claim any injunction against the other co-sharer. At best, he has a remedy of partition or to get a decree of joint possession. There is, thus, no infirmity in the findings recorded by the Courts below. These are concurrent findings of fact. That apart, the proposition of law regarding right of a co-sharer has also been correctly applied. In my considered opinion, the questions of law as posed by the appellant in paragraph 9 of the grounds of appeal do not, at all, arise for consideration of this Court. Consequently, the appeal is dismissed being devoid of any merit.
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Mohinder Singh vs Palwinder Singh And Others on 6 January, 2010

All pending civil miscellaneous applications are also dismissed in view of the above. January 6,2010 ( Mahesh Grover ) "SCM" Judge

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