Amarjit Kaur vs Gurvinder Singh alias Gurminder Singh and Others

Paramjeet Singh, J.

C.M. No. 6724-C of 2014

After hearing learned counsel for the applicant and for the reasons mentioned in the application, same is allowed, order dated 19.05.2014 is recalled and the appeal is restored to its original number.

R.S.A. No. 689 of 2014

This regular second appeal by plaintiff No. 1 is directed against the judgment and decree dated 23.01.2012 passed by learned Civil Judge (Junior Division), Patiala, whereby the suit for permanent injunction filed by the plaintiffs was dismissed as well as against the judgment and decree dated 13.08.2013 whereby the appeal preferred by appellant/plaintiff No. 1 has also been dismissed.

For convenience sake, reference to parties is being made as they are arrayed in the civil suit.

The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that originally the land measuring 376 bighas 14 biswas, as shown in the jamabandi for the year 2002-03, was ownership of Hari Singh, father of plaintiff No. 1 and defendant No. 2 and husband of Bachittar Kaur. After the death of Hari Singh, said land was inherited by plaintiff No. 1, defendant No. 2 and Bachittar Kaur widow of Hari Singh, who expired since long. It is averred that Bachittar Kaur executed a ''will'' in respect of her share in the total land to the extent of 1/2 share in favour of defendant No. 2 and her brother Pushpinder Singh. It is averred that the entire suit property is joint between the parties and has not been partitioned and all the parties are co-sharers in possession of every parcel of the land. Defendant No. 1 in connivance with defendants No. 2 and 3 without consent of the plaintiffs, installed a retail outlet of Hindustan Petroleum Corporation Limited in the land bearing khasra No. 465 (6-5), which is abutting the main road and is having a commercial value, for the sale of petrol, diesel etc. Plaintiffs being co-sharers have every right, title and interest in the suit land and this act of defendant No. 1 is illegal, null and void. It is further averred that defendant No. 1 also executed a lease deed dated 13.06.2007 with respect to said khasra number without consent of the plaintiffs, which is illegal, null and void and defendant No. 1 has obtained NOC for the installation of retail outlet by concealing true facts from the competent authorities. Defendants refused to admit the claim of the plaintiffs. Hence, suit in question for permanent injunction, mandatory injunction and declaration was filed.

Upon notice, defendants No. 1 and 2 put in appearance and filed joint written statement taking various preliminary objections. On merits, it was admitted that total area of the land is 376 bighas 14 biswas and defendant No. 1 is owner to the extent of 1/2 share. It was pleaded that entire land is still joint and plaintiffs, defendants No. 1 and 2 and Pushpinder Singh are co-sharers in the suit land but defendants No. 1 and 2 are in exclusive possession of the suit land wherein they have already raised the construction of petrol pump and stored diesel and petrol after spending huge amount. It was averred that plaintiff No. 2 and his father Gamdoor Singh were also in India during this period and they never objected to the construction carried out by defendant No. 1. It was further averred that petrol pump was installed by taking loan from the Punjab National Bank by mortgaging land measuring 25 bighas 12 biswas of defendant No. 1 and his brother Pushpinder Singh. Mortgage deed in favour of the bank was executed with the consent of Gamdoor Singh, husband of plaintiff No. 1 and father of plaintiff No. 2, who also signed the mortgage deed. Lease deed for the land is within the share of defendant No. 1.

Defendant No. 3 filed separate written statement taking various preliminary objection. It was averred that defendants were competent to lease out the property to defendant No. 3 and also to hand over the possession from the joint holding. Other facts were denied for want of knowledge having happened inter se between the plaintiffs and defendants No. 1 and 2. Denying all other facts, prayer for dismissal of suit was made by defendants.

Plaintiffs filed replication to the written statements denying the averments in the written statements and reiterating the averments in the plaint.

Court of first instance, on the basis of pleadings of the parties, framed following issues:-

Whether the plaintiff is entitled to permanent injunction as prayed for? OPP

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

Whether the plaintiff is entitled for declaration as prayed for? OPP

Whether the suit of the plaintiff is not maintainable in the present form? OPD

Whether the suit of the plaintiff is false, frivolous and vexatious? OPD

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the plaintiff has not come to the court with clean hands? OPD

Whether the suit of the plaintiff is liable to be dismissed? OPD

Whether the suit is bad for non joinder of necessary parties? OPD

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

Relief.

The Court of first instance, after appreciating evidence on record dismissed the suit of the plaintiffs. Against the judgment and decree of the Court of first instance, appeal preferred by the appellant has also been dismissed and the judgment and decree of the Court of first instance has been affirmed by lower appellate Court. Hence, this second appeal.

I have heard learned counsel for the appellant and perused the record.

Learned counsel for the appellant submitted that following substantial questions of law, formulated in the grounds of appeal, arise for consideration:-

Whether appellant is in exclusive possession of khasra No. 465 (6-5) as per the jamabandi for the year 2002-2003 and is entitled to protect her possession?

Whether the judgment and decree dated 23.1.2012 passed by the learned trial court and judgment and decree dated 13.8.2013 passed by the first appellate court is liable to be set aside as being against the revenue record which proves that the appellant is in the possession of the disputed land?

Learned counsel for the appellant contended that the judgments and decrees passed by both the Courts below are based on surmises and conjectures. The judgments and decrees of the Courts below being result of misreading of evidence on record are not sustainable in the eyes of law, thus, liable to be set aside.

I have considered the contentions raised by learned counsel for the appellant.

After appreciating evidence on record, Court of first instance has recorded following findings of fact:-

It is undisputed that plaintiff, defendant No. 1 & 2, alongwith one Pushpinder Singh are co-sharers in the total land measuring 376 Bighas 14 biswas as shown in the jamabandi Ex. P1, wherein, Khasra No. 465 (6-5) is comprised. Khasra Girdawari for the year 2006 Ex. P2 depicts the aforesaid co-sharer to be in joint possession of the entire property. However, it is also admitted fact that defendant No. 1 is in exclusive possession over the part of the khasra No. 465(6-5), wherein, the petrol pump has already been installed, by virtue of the very fact that the construction of petrol pump has been raised by defendant No. 1 therein. Aforesaid fact is evident in view of the seeking of the relief of mandatory injunction by the plaintiff by way of directing the defendant to remove petrol pump and retail outlet installed in the land in question. Plaintiff has produced the copy of order dated 30.7.2007 of Civil Judge, Senior Division, Patiala, Ex. P16, in application for interim injunction in the suit filed by the present defendant No. 1 & 2 alongwith co-sharer Pushpinder Singh, against present plaintiffs and Gamdoor Singh, pleading their exclusive possession over certain khasra numbers from out of the total land, including khasra No. 465 (6-5) and the application for interim injunction of the plaintiffs therein was dismissed. Also, plaintiffs have produced the certified copy of order dated 20.7.2009, Ex. P17, whereby, the aforesaid previous suit of the present defendants and Pushpinder Singh was ordered to be dismissed as withdrawn. Though, in view of the aforesaid orders, it transpires that present defendant and Pushpinder Singh failed to satisfy the court prima facie regarding their exclusive possession over the some khasra numbers of the total land, including instant khasra number in question, in view of the discussion, herein above, regarding the admitted position of installation of petrol pump by defendant No. 1, in part of khasra number 465 (6-5), it is established on record that defendant No. 1 is in exclusive possession of the said part of petrol pump.

Though, it is undeniable that every co-sharer has a right to every inch of the joint land, at the same time, it is to be stated that co-sharer in exclusive possession of part of the joint land has every right to enjoy the property in a manner not in consistent with similar right of other co-sharer. In the facts of the present case, defendant No. 1 is owner to the extent of 1/2 share in the total land and thus has a right to more than 30 bighas of land in the joint holding. It is further important to note that defendant No. 1 & 2 have pleaded through their written statement that total 18 acre of land, adjoin the main road on its both sides from the joint khewat and plaintiff No. 2 Sarabjit Singh deposing as P.W. 1 has admitted in his cross examination that Khasra No. 465/464/451/454/455/456/457 and 463 were abutting the main road Devigarh Islamabad.

The findings of fact recorded by Court of first instance have been affirmed by lower appellate Court.

Learned counsel for the appellant has failed to show that the findings of fact recorded by Courts below are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record.

I do not find any illegality or perversity in the impugned judgments and decrees passed by both the Courts below.

In view of concurrent findings of fact, no question of law, muchless substantial question of law, as claimed, arises in the present appeal.

No other point has been urged.

Dismissed.