Narajan Singh vs Balbir Singh

Rakesh Garg, J.—This is plaintiffs'' second appeal challenging the judgment and decree dated 15.12.2011 of the lower appellate Court, whereby appeal filed by the defendant-respondent, against the judgment and decree dated 12.11.2010 of the trial Court, was accepted and suit of the plaintiff-appellants was ordered to be dismissed. As per the averments made, appellants purchased the suit property and thereafter constructed a boundary wall and also installed a gate in the said plot. Since defendant-respondent wanted to grab the suit property, the appellants filed a civil suit seeking permanent injunction restraining the respondent from interfering into their possession over the plot in dispute.

Upon notice, the respondent appeared and contested the suit on the ground that he had purchased the suit property prior to the purchase by the plaintiff-appellants and was in possession of the same. It was further pleaded that sale deed in favour of the appellants was for another area and was not of the property which was in possession of the defendant-respondent.

On the basis of the pleadings of the parties, the trial Court framed following issues:

Whether the plaintiff is entitled to injunction prayed for? OPP

Whether plaintiff has no cause of action and locus standi? OPD

Whether the suit is not maintainable? OPD

Relief.

After considering the evidence on record and hearing the arguments raised, the trial Court decreed the suit in the following manner:

It is claimed by the plaintiffs that they purchased the land with specific boundaries out of the land bearing Khasra number 426/2 as entered in Jamabandi for the year 2004-2005 situated in village Malout. A perusal of copy of sale deed Ex. P1 reveals that there is land of Rajinder Kumar towards eastern side, street on western side, street on northern side and property of Gurwinder Singh towards southern side; whereas, on the other hand, a perusal of sale deeds placed and proved on record by defendant shows that boundaries mentioned as towards eastern side and southern side there is property of Jagdish Singh and towards western and northern side there is passage. Copy of sale deed Ex. D2 reveals that there is property of Jagdish Singh towards east, street on western side and towards northern side: property of defendant himself and southern side: property of Jagdish Singh.

A property can be identified either by boundaries or by any other specific description. Plaintiffs have given specific boundaries of the suit land and it is clear from the site plan that disputed property lay in the suit land and that it belongs to the plaintiffs. Defendant has not claimed that defendant has not able to prove that plaintiffs have mentioned wrong boundaries. Being so, it is held that plaintiffs are in possession of the suit property. Suit is thus maintainable. Plaintiffs have cause of action and locus standi to file the suit. Defendant can not interfere in the possession of the plaintiffs except in due course of law. As such, plaintiffs are entitled to seek injunction restraining the defendant from interfering in the possession of plaintiffs and/or dispossessing them from property measuring 20'' x 15'' i.e. 1 Maria 1/186 share of 9 Kanals 6 Marlas under Khasra No. 426/2(9-6) which is bounded as East: Rajinder Kumar, West: Street, North: Street, South: Gurvinder Singh Mann delineated with letters ABCD in the site plan, area of village Malout Tehsil Malout District Muktsar illegally, forcibly except in due course of law. Plaintiffs are also entitled to seek injunction restraining the defendant from raising any sort of construction or alienating the said property. These issues are decided accordingly.

However, the defendant-respondent filed an appeal against the aforesaid judgment and decree of the trial Court, which was accepted vide impugned judgment and decree. While accepting the appeal, the tower appellate Court observed as under:

From the totality of the evidence adduced by both the parties, two facts have come on record i.e. Firstly, sale deed Ex. P1 as well as sale deed Ex. D1 and Ex. D2. The property sold is out of the joint khata and there is no evidence on the record in order to prove that there was any partition and as a result of which any seller was in exclusive possession of the property in question. As such it is settled proposition of law that a sale even of specific number out of the joint khata is deemed to be the sale of share only and the purchaser becomes a co-sharer along with other co-sharers and the purchaser steps into the shoes of seller. Secondly, it is pertinent to mention here that sale deed Ex. P1 on the basis of which the plaintiff has filed the present suit is dated 25.10.07. On the other hand, the defendants have proved on record sale deeds vide which he purchased the property in question are dated 11.2.93 and another sale deed dated 22.4.97. Meaning thereby the sale deeds of the defendants are prior to the sale deed of plaintiff. As per Section 38 of the Specific Relief Act in order to get the relief of perpetual injunction the plaintiff has to prove that there exists a legal right and obligation in his favour whether expressly or by implication. In other words the plaintiff in this case has to first establish his legal right and to prove that he is in exclusive possession of the property in question regarding which permanent injunction is sought by the plaintiff. In this case the plaintiff has failed to prove his version being the exclusive owner in possession of the property in question because firstly the property sold by Amarjit Kaur was out of joint khata which was not partitioned. Although the sale deeds of defendants have also met with the same fate but it is settled proposition of law that the plaintiff is to prove its own case and cannot stand on the weaknesses of the defendant. Further even if sides and dimensions are considered, the sale deed which are prior to the sale deed of the plaintiff but sides and dimensions have also been categorically mentioned. So as such the finding of learned lower Court on issue No. 1 is set aside and issue No. 1 is decided in favour of defendant and against the plaintiff. Accordingly, findings of learned lower Court on issues No. 2 and 3 are also set aside and as such findings of learned lower Court on issues No. 2 and 3 are decided in favour of the defendant and against plaintiff.

Feeling aggrieved from the aforesaid judgment and decree of the first appellate Court, the plaintiffs have filed the instant appeal submitting that the following substantial questions of law arise in this appeal for consideration:

Whether the findings recorded by the Ld. First Appellate Court are perverse and are based on misreading of evidence?

Whether the plaintiffs-appellants are entitled to protect their legal possession of the property in dispute?

Whether the Civil Suit for permanent injunction filed by the plaintiffs-appellants is maintainable?

Whether the impugned judgment and decree dated 15.12.2011 passed by the Ld. Additional District Judge, Sri Muktsar Sahib is sustainable in view of the grounds taken in the memorandum of appeal?

In support of his case, counsel for the appellants has vehemently argued that it is proved on record that the appellants are in possession of the disputed property, and therefore, they had a right to protect their possession and at the most the appellants could have been dispossessed only in accordance with law, and thus, they were entitled to the injunction as prayed for and the impugned judgment and decree of the first appellate Court are liable to be set aside.

I have heard learned counsel for the appellants and perused the judgments and decrees of the Courts below.

The argument raised is misconceived. It could not be disputed before this Court that appellants as well as the defendant respondent are co-sharers being purchasers from a joint Khata and the respondent had purchased the land prior to the appellants. It is further not in dispute that no partition of the joint Khata has taken place till date. Further it is a settled proposition of law that a sale, even of a specific number out of the joint Khata, is deemed to be the sale of share only and the purchaser becomes a co-sharer along with other cosharers and such purchaser steps into the shoes of the seller.

In this case, the appellants have failed to prove their version of being owners in exclusive possession of the property in question because the property sold by the vendor was out of the joint Khata, which was not partitioned. However, there is no evidence as to how the appellants were put into exclusive possession of the property in dispute by their vendor, especially in view of the fact that the defendant respondent had purchased the land from joint Khata prior to them. Further it is well settled that no injunction can be granted against a cosharer.

No other argument has been raised. In view thereof, no substantial question of law arises in this appeal and thus the same is dismissed being without any merit.