Ranjit Singh and Another vs Gurmit Kaur and Another

L.N. Mittal, J.—Defendants No. 1 and 2 Ranjit Singh and Dilbag Singh have filed this second appeal, having been unsuccessful in both the courts below. Suit was filed by Prabhjit Singh and Karamjit Singh - minors, through their mother Gurmeet Kaur as next friend against appellants and Raj Kaur - proforma respondent No. 2 as defendant No. 3. Plaintiffs have alleged that they are co-sharers, but in exclusive possession of the suit land measuring 05 kanals 13 marlas comprising of khasra No. 107/22/1/2, having purchased it from Kashmir Kaur daughter of Pritam Kaur, vide sale deed dated 12.08.2002. Prior to it, Pritam Kaur had leased out the suit land to plaintiffs'' mother Gurmeet Kaur on 13.12.2001 and Gurmeet Kaur was in possession of the suit land. After purchase, plaintiffs have come in exclusive possession of the suit land. Defendants No. 1 and 2 alleged to have purchased it from Raj Kaur - defendant No. 3. Defendants threatened to dispossess the plaintiffs from the suit land forcibly. Plaintiffs sought permanent injunction restraining the defendants from doing so.

Defendants, in the written statement, alleged that total area of khasra No. 107/22/1/2 is 05 kanals 18 marlas and defendants No. 1 and 2 are in exclusive possession thereof, having purchased it from Raj Kaur - defendant No. 3, vide sale deed dated 10.09.2002. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Tarn Taran, vide judgment and decree dated 01.05.2007, decreed the plaintiffs'' suit. First appeal preferred by defendants No. 1 and 2 has been dismissed by learned Additional District Judge, Tarn Taran, vide judgment and decree dated 14.09.2010. Feeling aggrieved, defendants No. 1 and 2 have filed this second appeal.

I have heard Learned Counsel for the appellants and perused the case file.

At the outset, it has to be noticed that judgment and decree of the trial court have attained finality having not been challenged properly by filing first or second appeal. Suit in the trial court was filed by Prabhjit Singh and Karamjit Singh - minor plaintiffs, through their mother Gurmeet Kaur as next friend. However, neither in first appeal nor in instant second appeal, said plaintiffs have been arrayed as party. On the contrary, plaintiffs'' mother Gurmeet Kaur was arrayed as party as respondent No. 1 in first appeal as well as in instant second appeal. Consequently, there was neither legal and valid first appeal nor there is legal and valid second appeal. Judgment and decree of the trial court have, therefore, attained finality.

In addition to the aforesaid, even on merits, plaintiffs'' suit has been rightly decreed by the courts below. Plaintiffs'' oral and documentary evidence stand unrebutted. Defendants did not lead any evidence whatsoever to rebut the plaintiffs'' evidence. Consequently, there was no reason for the courts below to discard the unrebutted cogent oral and documentary evidence led by the plaintiffs. Adverse inference arises against the defendants for not leading any evidence. None of the defendants appeared in the witness-box nor the alleged sale deed, vide which defendants No. 1 and 2 allegedly purchased the suit land from defendant No. 3, has been produced in evidence. Consequently, adverse inference has to be raised against the defendants. Sale deed set up by plaintiffs in their favour is also prior in time to the sale deed set up by defendants No. 1 and 2 in their favour. Moreover, defendants No. 1 and 2 have no locus standi to file the appeal because there is no material on record to depict that they have any right, title or interest in the suit land. However, I may hasten to add that in this simple suit for permanent injunction only based on possession of the plaintiffs, question of title is not to be adjudicated upon and the same may be adjudicated in other appropriate proceedings. Anything observed herein shall have no bearing on the said question.

Counsel for the appellants, relying on judgment of this Court in the case of Mohinder Singh vs. Palwinder Singh and Others reported as 2010 (Suppl.) CCC 238 (P&H), contended that plaintiffs being not in exclusive possession of the suit land, are not entitled to injunction against co-sharers/defendants. The contention is misconceived and untenable. If a co-sharer is not in exclusive possession of any parcel of the joint land, certainly such co-sharer cannot seek injunction against any other co-sharer. However, in the instant case, plaintiffs have sought injunction on the basis of their exclusive possession over the suit land. Since plaintiffs proved their exclusive possession over the suit land by unrebutted evidence, they cannot be dispossessed therefrom, except in due course of law, even by the other co-sharers. Consequently, injunction to this effect has been rightly granted in favour of the plaintiffs.

Counsel for the appellants referred to copy of jamabandi and khasra girdawari. However, the said documents are not part of the evidence led in the trial court, and therefore, cannot be looked into. Moreover, even according to jamabandi, Pritam Kaur was in exclusive possession of the suit land. Plaintiffs purchased the suit land from Kashmir Kaur daughter of Pritam Kaur. Plaintiffs also claimed that their mother Gurmeet Kaur had taken possession of the suit land from Pritam Kaur herself. Evidence of the plaintiffs to this effect stands unrebutted. Consequently, plaintiffs are proved to be in exclusive possession of the suit land having derived it from Pritam Kaur through their mother Gurmeet Kaur. Finding of the courts below to decree the suit of the plaintiffs that they are in exclusive possession of the suit land is fully justified by the evidence on record and does not suffer from any infirmity, much less perversity or illegality nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not warrant interference. In fact, the said finding is the only reasonable finding that can be arrived at on the basis of unrebutted evidence of the plaintiffs. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Accordingly, the appeal is dismissed in limine.