Harbans Singh and Others vs Harbans Singh and Others

Jaswant Singh, J.—Petitioners/plaintiffs are in revision under Article 227 of the Constitution aggrieved against the order dated 16.08.2011 (P-1) passed by the learned Civil Judge (Jr. Divn.), Hoshiarpur as well as order dated 21.01.2014 (P-2) passed by learned Additional District Judge (Adhoc) FTC, Hoshairpur whereby their application under Order 39 Rules 1 & 2 CPC for restraining the defendants from interfering in the peaceful possession of the plaintiffs as well as from using the tubewell in the land till the same is partitioned was dismissed. Plaintiffs in this suit alleged that they are the co-owners in possession of the entire property as mentioned in the headnote of the plaint and on the said suit property there was a tubewell which was in the name of their mother Amar Kaur exclusively. It was stated that defendant Nos. 2 to 4 had inherited the property from sister of Amar Kaur i.e. Swaran Kaur their mother and subsequently they had sold the property to defendant No. 1. It was further stated that defendant Nos. 2 to 4 were never in possession of any part of the suit land, therefore, defendant No. 1 was also not in possession of any part of the suit land. Thus prayer was made that defendants be restrained from interfering in the possession of the plaintiff and also from using the tubewell.

Upon notice, material averments were denied and it was stated that defendant Nos. 2 to 4 were in possession of specific khasra numbers and possession of the same was given to defendant-No. 1 vide sale deeds which were executed in favour to the extent of 26 Kanal 2 marlas. \\i was further submitted that tubewell is being used by all the co-sharers for irrigation of the entire joint land and if defendants are restrained from using the tubewell their portion of the land cannot be irrigated, which would result in immense loss.

After hearing learned Counsel for the parties, both the Courts below dismissed the application under Order 39 Rules 1 & 2 CPC preferred by the petitioners.

Learned Counsel for the petitioners has argued that the plaintiffs are in possession of the entire suit land and since the tubewell is in the exclusive name of their mother (Amar Kaur), the learned Courts below have erred in law by not allowing the application for interim injunction and thus prayer was made for allowing the revision petition.

After hearing learned Counsel for the Petitioner and perusing the paper book, this Court is of the considered opinion that the present revision is devoid of any merit and the same deserves to be dismissed. A perusal of the entire record would reveal that the plaintiffs as well as defendants have been shown as co-sharers of the property in question and admittedly the said property has not been partitioned by meets and bounds till date. Furthermore, both the Courts below have rightly held that the co sharer cannot claim exclusive possession over the property until and unless he is able to show by way of cogent evidence that he is in exclusive possession of the entire property. In the present case there is no such evidence coming forth that the plaintiffs are in exclusive possession of the entire property to the ouster of the defendants/respondents whereas as per the sale deeds the possession of specific khasra numbers along with use of tubewell has been delivered to defendant No. 1 by admitted co-owners/defendant Nos. 2 to 4.

Learned Counsel for the petitioners as relied upon Ramdas Vs. Sitabai and Others, , and also upon Orient Craft Infrastructure Ltd. Vs. Smt. Subhadra and Others , to urge that a person who is buying a property from a co-sharer is not entitled to possession of any portion of land until and unless the same is partitioned by meets and bounds. Thus, it was argued that a vendee from a co-owner shall be entitled to possession only through partition.

There is no dispute regarding the propositions as laid down in the aforesaid judgments of. Hon''ble Supreme Court as Well as of Co-ordinate Bench of this Court. However, the facts and circumstances of the present case do not warrant any interference in favour of the petitioners especially in view of the fact that the contention of the petitioners to the effect that they are in possession of the entire property is not borne out from the record. Furthermore, in any case, the petitioners have impleaded defendant Nos. 2 to 4 as a party being a co-sharer and prima facie for enjoying the property as co-sharer, they are to cultivate the land by using the tubewell which although is in name of the mother of the petitioners but it is also admitted fact that there is no other tubewell in the entire chunk of land. Thus it can be safely presumed that the defendants also were using the said tubewell for irrigation of their piece of land. In view of the above, finding no merit in the present revision petition, the same is hereby dismissed. However, it is made clear that the observations made herein above shall have no bearing on the merits of the case because the findings returned are purely based on prima facie evidence.