Ajit Singh vs Randhir Singh and Others

Rakesh Kumar Garg, J.

C.M. No. 7769-C-2013

The application is allowed, subject to all just exceptions. Affidavit of appellant is taken on record.

RSA No. 5057 of 2011 (O & M)

This is plaintiff''s second appeal challenging the judgment and decree of the First Appellate Court, whereby, a suit for permanent injunction with consequential relief has been partly dismissed.

As per the averments made in the suit, the suit property is joint property of the parties and no partition has taken place. According to the appellant, he being owner in possession of 1/6th share in the suit property, is entitled to use his share without any interference. However, the respondents are adamant to dispossess him from his share without due process of law and are digging foundation on the western side of Rectangle No. 32, Killa No. 23/1 of the suit property. The respondents were requested not to raise any construction till the partition by metes and bounds but the respondents have refused his request.

Upon notice, the respondents appeared and filed their written statement raising various preliminary objections. On merits, the respondents pleaded that a mutual partition has taken place between the appellant as well as the respondents in respect of property constituted in Rectangle No. 32 Killa No. 23/1 and Rectangle No. 38, Killa No. 3/2 & 8. It was further averred that the appellant has transferred Khasra No. 112 by way of sale deed in favour of the respondents No. 4 and 5 and Khasra No. 114 has also been partitioned. It was denied that they were interfering in the possession of the appellant and they have dug any foundation on Rectangle No. 32, Killa No. 23/1 as alleged. It was further averred that the appellant has no cause of action thus, the suit is liable to be dismissed.

Defendant No. 6 filed a separate written statement admitting the claim of the plaintiff. He further stated that mutual partition in respect of Rectangle No. 32, Killa No. 23/1, Rectangle No. 38, Killa No. 3/2 & Killa No. 8 and Khasra No. 112 and 114 has taken place in between the parties and the remaining suit property has not been partitioned.

In the replication, plaintiff admitted that a mutual partition in respect of Rectangle No. 32, Killa No. 23/1, Rectangle No. 38, Killa No. 3/2 & Killa No. 8 and Khasra No. 112 and 114 has taken place. and even mutation has been sanctioned vide Mutation No. 807 dated 15.6.2006. However, he further averred that the remaining suit property is still joint and no partition in respect of remaining property has taken place.

On the basis of pleadings of the parties, following issues were framed

Whether the plaintiff has got injunction for restraining the defendants from raising any type of construction over the suit land without getting it partitioned? OPP

Whether the plaintiff is entitled to get mandatory injunction as prayed for ? OPP.

Whether the suit is not maintainable? OPP

Whether the plaintiff is stopped to file the present suit by his own act and conduct? OPD

Whether the plaintiff has no cause of action to file the present suit? OPD

Relief.

The parties led oral as well as document in support of their respective claims. On conclusion of trial, issue No. 1 was decided in favour of the plaintiff while issue No. 2 was decided against him. The remaining issues were decided against the defendants and suit was decreed with costs.

Feeling aggrieved therefrom, defendants No. 1 to 5 filed an appeal before the First Appellate Court. The First Appellate Court vide its judgment dated 29.11.2011 partly accepted the appeal filed on behalf of the defendant-respondents. The relevant paragraphs of the lower Appellate Court reads thus:-

Now coming to the merits of the case, it is not disputed between the parties that the land mentioned in para No. 1 of the plaint measuring 155 kanals 7 marlas was joint of the parties in which the plaintiff-respondent no. 1 Ajit Singh was having 1/6th share, as would also be evident from the copy of the jamabandi for the year 2000-2001 placed on record as Ex. PWI/B. The entries made in the record of rights carry presumption of truth u/s 44 of the Punjab Land Revenue Act, 1887. At this stage, it has been, however, pointed out by the learned counsel for the appellants-contesting defendants No. 1 to 5 Mr. S.L. Gupta, Advocate that out of the land mentioned in para No. 1 of the plaint, the parties during the pendency of the present suit, had mutually partitioned the land measuring 30 kanals 17 marlas comprised in rectangle No. 38 killa No. 3/2 (8-0), 8(8-0), 7(8-0) and khasra No. 112(1-4), vide affidavit Mark-B dated 1.6.2006 and rapat rojnamcha waqayati bearing No. 672 dated 5.6.2006 and the said fact of mutual partition was also incorporated in their record by the revenue authorities, vide mutation No. 807 Mark-C sanctioned on 15.6.2006. Even the plaintiff Ajit Singh PW1 in his affidavit Ex. PWI/A has admitted the said fact of mutual partition of the land measuring 30 kanals 17 marlas out of the land mentioned in para No. 1 of the plaint as well as sanctioning of mutation No. 807 dated 15.6.2006 by the revenue authorities. The learned counsel for the appellants also pointed out that the partition proceedings regarding the remaining land is still pending before the ACIG, Dharuhera and the said factual position could not be disputed even by the learned counsel for the respondents.

In view of the above explained position, the learned trial Court thus committed a manifest error in granting injunction in favour of the plaintiff in respect of whole of the land mentioned in para No. 1 of the plaint.

Accordingly, the appeal stands partly allowed, the impugned judgment and decree passed by the learned trial Court is modified to the extent that the defendants are restrained from raising construction or changing the nature of the suit property mentioned in para No. 1 of the plaint or ousting the plaintiff therefrom to the extent of his share therein except the land comprised in rectangle No. 32 Killa No. 23/1(5-13), rectangle No. 38 Killa Nos. 3/2(8-0), 8(8-0), 7(8-0), Khasra No. 112(1-4) measuring 30 kanals 17 marlas till the same gets partitioned by the competent revenue authority. No order as to costs. Decree sheet be prepared accordingly.

Aggrieved from the judgment and decree of the lower Appellate Court, the plaintiff has filed the instant appeal submitting that the following substantial questions of law arises in this appeal:-

a Whether the Ld. Additional District Judge, Rewari has rightly appreciated the evidence properly?

b. Whether the partial partition is permissible in the eyes of law ?

c. Whether a co-sharer can raise construction over a specific portion of the land without partition the same legally ?

d. Whether the partition of a piece of land by way of affidavit is the legal partition ?

e. Whether the cogent and legal decree dated 3.6.2009 passed by Ld. Civil Judge (Junior Division) Rewari can be modified by the Ld. Additional District Judge, Rewari despite the fact that the partition proceeding are pending before the Ld. AC Ist Grade Daruhera?

Noticing the contention raised on behalf of the appellant, this Court passed the following order on 01.03.2012:-

Contention of the counsel for the appellant is that partition proceedings regarding suit land measuring 155 kanals 7 marlas are pending with the revenue authorities. During the pendency of the proceedings, defendants started raising construction upon the land in question and set up a defence that part of the property had been partitioned pertaining to Rect. No. 32 Killa No. 23/1 and Rect. No. 38 Killa No. 3/2 and Killa No. 8 and khasra No. 112 and 114 on 15.06.2006 since the suit was filed on 05.04.2006. Keeping in view this aspect, Civil Judge (Jr. Divn.), Rewari had granted a decree whereby the defendants were restrained from raising any type of construction over the suit property till the same is partitioned by metes and bounds. The lower appellate Court has, however, modified the judgment and decree and excluded the land measuring 30 kanals 17 marlas which was the specific grouse of the plaintiff that the defendants were raising construction in the suit land.

Notice of motion for 09.07.2012.

Operation of the judgment and decree of the lower appellate Court shall remain stayed till further orders.

The order dated 22nd July, 2013 may also be noticed, which reads thus:-

The appellant filed the civil suit claiming the following relief:-

Suit for permanent injunction with consequential relief restraining the defendants from ousting the plaintiff from his share in the land mentioned in para no. 1 of the plaint forcefully and not to dispossess except due course of law and not raise construction on the land adjoining to the phirni of the village and not to interfere into the cultivating possession of the plaintiff in any manner and not to alienate or sale without partition and if during the pendency of the suit the defendants are successful in their ill will of dispossession of the plaintiff over the suit property then the suit be treated for mandatory injunction.

The suit was decreed by the trial Court in the following manner"-

It is ordered that suit of the plaintiff succeeds and the same is hereby decreed with costs to the effect that the defendants are restrained from raising construction or changing the nature of the suit property or ousting the plaintiff without due process of law, till the same is partitioned by metes and bounds.

Appeal against the aforesaid judgment and decree was modified in the following manner:-

It is ordered that the present appeal is partly allowed, the impugned judgment and decree passed by the learned trial court are modified to the extent that the defendants are restrained from raising construction or changing the nature of the suit property mentioned in para No. 1 of the plaint or ousting the plaintiff therefrom to the extent of his share therein except the land comprised in rectangle No. 32 Killa No. 23/1(5-13), rectangle No. 38 Killa Nos. 3/2(8-0), Khasra No. 112(1-4) measuring 30 kanals 17 marlas till the same gets partitioned by the competent revenue authority. No order as to costs.

Learned counsel for the appellant has specifically stated before this Court that the suit land has not been partitioned by metes and bonds till date. Whereas the aforesaid factual statement has been disputed by the learned counsel for the respondents.

Let the parties file an affidavit before the next date of hearing in this regard.

List on 30.07.2013.

To be shown in the urgent list.

In pursuance of the aforesaid order, the appellant has filed the affidavit by way of C.M. No. 7769-C-2013. The affidavit of respondent-Randhir Singh has also been filed in the Court and the same is taken on record.

The grievance of the appellant is that the partition proceedings of the whole land between the parties are still pending and therefore, unless the partition takes place by metes and bounds, the appellant is entitled to protect his possession over the suit land.

However, a perusal of the affidavits filed on behalf of the parties would show that the partition proceedings have been accepted and the parties have been put in their respective possession ''sanad taksim''.

Not only this, the mutual partition of land measuring 30 kanals 17 marlas comprised in rectangle No. 38 Killa No. 3/2 (8-0), 8 (8-0), 7(8-0) and Khasra No. 112(1-4), has not been disputed between the parties. Even the factum of the said mutual partition has been incorporated in the revenue record.

It is well settled that a co-sharer is entitled to joint possession and cannot be ousted from joint khata. However, it is equally well settled that a co-sharer who is in exclusive possession of a specific part of joint land is entitled to protect his possession till the partition takes place by metes and bounds. In the instant case, defendant/respondents who are in possession of land measuring 30 kanals 17 marlas on the basis of mutual partition between the parties entitled to protect their possession in the said land.

In view of the aforesaid admitted fact, no fault can be found in the impugned judgment and decree of the lower Appellate Court, whereby, the trial Court judgment and decree is modified to the extent of restraining the defendant/respondents from raising construction or changing the nature of the suit property as mentioned in plaint or ousting the plaintiff therefrom to the extent of his share therein accept the land comprised in rectangle No. 32 killa No. 23/1 (5-13), rectangle No. 38, killa Nos. 3/2(8-0), 8(8-0), 7(8-0), khasra No. 112(1-4), measuring 30 kanals 17 marlas till the same gets partitioned by the competent Revenue Authority.

Thus, no substantial question of law, as raised in this appeal, arises for consideration by this Court. Dismissed.