Sardara Singh vs Dilbagh Singh

R.L. Anand, J.—Unsuccessful Plaintiff Sardara Singh alias Gurbakash Singh has filed the present R.S.A. and it has been directed against the judgment and decree dated 12.3.1979 passed by the Court of Shri K.R. Mahajan, Additional District Judge, Hoshiarpur, who set aside the judgment and decree dated 21.11.1975 passed by Shri S.N. Aggarwal, Sub Judge, IInd Class, Hoshiarpur, who decreed the suit of Plaintiff Sardara Singh for possession.

The brief facts of the case are that Sardara Singh alias Gurbakash Singh filed a suit for possession for the land measuring 1 Marlas out of Khewat No. 119 Khatauni Nos. 335 and 336, Khasra Nos. 224 and 225/2 entered in jamabandi for the year 1968-69 fully described in the head note of the plaint, situated in the area of village Jian, Tehsil and District Hoshiarpur, and the case set up by the Plaintiff was that he and his brother Mohan Singh are the owner of the land in dispute and they had purchased it from Chain Singh son of Labh Singh and Ganga Singh son of Ram Singh vide registered sale deeds dated 25.1.1966 and 7.7.1965. Earlier, Defendant Dilbagh Singh and Ganga Singh aforesaid were the co-shares in equal shares of the land measuring 10 Marias bearing Khasra No. 225 in which Defendant Dilbagh Singh had 5 Marias. The Government acquired 2 Marlas of land and in this manner the Defendant remained the owner of 4 Marlas only. The Plaintiff and his brother Mohan Singh are the owner of 4 Marlas out of Khasra No. 225 and 2 Marlas out of Khasra No. 224. Out of Khasra No. 224, the Government acquired 3/4 marlas land and the Plaintiff remained the owner of 1-1/4 Marlas. In this manner the Plaintiff and his brother Mohan-Singh became the owners of 5-1/4 Marlas of land while the Defendant remained the owner of 4 Marlas out of Khasra Nos. 224 and 225. However, Defendant Dilbagh Singh encroached upon the suit land of the Plaintiff and his brother took forcible possession of 1 Marlas of land. The Defendant was asked to vacate the illegal possession but he refused to do so. Hence the suit.

The suit was contested by the Defendant who even denied the execution of sale deed in favour of the Plaintiff and his brother. The Defendant became owner to the extent of 1/2 share in Khasra No. 225, measuring 10 Marlas and admitted that 2 Marlas from this Khasra No. had been acquired by the Government. He further stated that he is the owner of 4 Marlas of land from Khasra No. 225. which is in his possession. He has built 3 shops on a part of Khasra No. 225/2 which was owned by him in the year 1966 on a considerable cost and the remaining part of 4 Marlas is also in possession of the Defendant. The Defendant and his real brothers Darshan Singh, Sohan Singh and Jarnail Singh are the owners of Khasra No. 224 and these persons are the necessary parties to the suit. The Plaintiff and his brother Mohan Singh have no right over the site in dispute. The Plaintiff has got made wrong entries in the revenue record in collusion with the Patwari. Additional plea was taken that if the Plaintiff and his brother Mohan Singh are proved to be the owners, even then the Plaintiff to possession as the Defendant is also co-share in the suit property and he is entitled to remain in possession till the property is partitioned by metes and bounds. Moreover Mohan Singh brother of the Plaintiff has also not been added as a party to the suit, which is liable to be dismissed for non-joinder of necessary parties.

From the above pleadings of the parties the learned trial Court framed the following issues:

(i) Whether Darshan Singh, Sohan Singh, Jarnail Singh and Mohan Singh are the necessary parties to the suit?

(ii) Whether the Plaintiff Sardara Singh and his brother Mohan Singh are owners of the property in suit? OPP.

(iii) Relief.

The parties led oral and documentary evidence in support of their case and on the conclusion of the trial both the issues were decided in favour of the Plaintiff. A decree for possession was granted and the Defendant was called upon to remove the structure over the site belonging to the Plaintiff and his brother.

Aggrieved by the said judgment and decree, Defendant Dilbagh Singh filed appeal before the Court of Additional District Judge, Hoshiarpur, who vide the impugned judgment and decree dated 12.3.1979 set aside the judgment and decree of the trial Court and dismissed the suit of the Plaintiff and aggrieved by the judgment and decree of the first appellate Court, Plaintiff Sardara Singh has filed the present appeal.

I have heard J.S. Toor, Advocate, with Shri H.S. Toor, Senior Advocate, on behalf of the Appellant, and Shri G.S. Jaiswal, Advocate, with Mrs. Asha Jaiswal. Advocate, on behalf of the Respondent, and with their assistance have gone through the record of the case.

It may be useful for me at the first instance to incorporate the reason which prevailed upon the learned Additional District Judge, Hoshiarpur, in accepting the appeal and those reasons have been incorporated in para No. 4 of the judgment reproduced as under:

The simple case of the Plaintiff was that he was a co-share in the suit property; where as the case of the Defendant was that the (Plaintiff) is not the owner of the suit property. However, in the alternative it was pleaded that even if the Plaintiff proves that he is a co-sharer of the property by means of purchase, even than the Defendant is entitled to remain in possession till partition as a co-sharer. The factum of being a co-sharer is also supported from the copy of Jamabandi Ex.P-3 and copy of Khasra Girdawari for Kharif 1974, wherein the parties along with Mohan Singh and others are shown as co-sharers. The fact remains that the parties are co-sharers. In the presence of this material, Mr. Gurdas Ram, learned Counsel for Respondent contended that the partition has been effected between the parties and the Defendant-Appellant is in possession of 1 marlas more in excess of his share as a trespasser. The argument is misconceived. Not a word has been alleged regarding the factum of partition nor any issue was sought in that behalf. No amount of evidence, led in that behalf, is of any consequence, especially when the case at the outset in the plaint was that the parties are co-sharers. Mr. Gurdas Ram, learned Counsel for the Respondent does not dispute the legal proposition that if that is so, then the suit in the present form is not maintainable and is liable to be dismissed. However, it is contended, that the plea regarding the non maintainability was not raised, nor any issue was framed in that behalf, and the same is not raised in the grounds of appeal. It was maintained that the same may not be permitted to be raised, at this stage of the case. The argument has no force. Firstly, the point was though not raised, in so many words, has been taken. Apart from this, the plea of non-maintainability is a legal plea. In State of Rajasthan Vs. Rao Raja Kalyan Singh, (Dead by his Lrs.), , their Lordships have held as follows:

Plea of non-maintainability of suit is a legal plea and can be accepted although no specific plea was taken or precise issue framed.

The principles laid down in the reported judgment fully apply, the clinch the matter. In view of what has been said, the presence of Mohan Singh and others co-sharers as parties in the suit, is also necessary, and their non-impleading is fatal to the suit.

Assailing the findings of the first appellate Court, it was argued by the learned Counsel for the Appellant that the first appellate Court erred in holding that the suit of the Plaintiff-Appellant was bad for non-joinder of necessary parties. The parties were not co-sharers. The suit could be even decreed in the absence of Mohan Singh, brother of the Plaintiff, because any decree which might be passed in the suit will also enure for the benefit of Mohan Singh. The counsel for the Plaintiff further submitted that it has been proved on the record that the site in dispute has been usurped by the Defendant in an unauthorised manner and does not remain a co-sharer. On the contrary, the ownership of the Plaintiff and his brother Mohan Singh stands established from the two sale deeds (Exhibit P1 and P2) on the record duly proved and it has also been proved on the report of the Local Commissioner that the site measuring 1 Marla and 2 Sarsais is in possession of the Defendant-Respondent in excess of his title and, therefore, the suit of Plaintiff should be decreed as prayed for.

On the contrary, Shri G.S. Jaiswal, learned Counsel appearing for the Respondent while supporting the judgment of the first appellate Court, submitted that it has been proved on the record that parties to the suit became co-sharers even after the purchase of the land by the Plaintiff and his brother and once that status between the parties is established, the Plaintiff has to be relegated to seek the partition of the site in dispute. In the alternative it was pleaded by the learned Counsel for the Respondent that even if it is assumed for the sake of argument that the possession of the Defendant was in excess of his ownership, still in the capacity of a co-sharer he is entitled to retain the same till the site in dispute, which is assessable to land revenue is partitioned by metes and bounds.

After considering the rival contentions of the parties I am of the considered view that the first appellate Court has not rightly appreciated the evidence led by the parties and took an erroneous view in dismissing the suit of the Plaintiff-Appellant. The basis for the dismissal of the suit made by the first appellate Court was that the parties were co-sharers as alleged by the Plaintiff himself in the plaint and even after the execution of the sale deeds in his favour as well as in the favour of his brother Mohan Singh. The learned first appellate Court has also relied upon the copy of the Jamabandi. If it stands established from the evidence that the parties did not remain co-sharers, then the presumption attached to the correctness of the Jamabandi also stood rebutted. In this regard there is a statement of Chain Singh, who appeared as D.W.1 and admitted in his cross-examination that brothers of Dilbagh Singh Defendant sold their properties, which was successfully pre-empted by Defendant Dilbagh Singh himself. Even Dilbagh Singh admitted in his cross-examination that he purchased the shares of his brother. In these circumstances when Darshan Singh, Sohan Singh and Jarnail Singh were left with no interest in the site in dispute, they were not supposed to be added as Defendants, as projected by Dilbagh Singh Defendant. Moreover it is settled law that one co-sharer can file a suit for possession and the decree so obtained would enure for the benefit of all joint owners. The suit of the Plaintiff could not be dismissed even on the ground that Mohan Singh, brother of the Plaintiff was not added as a co-Plaintiff or shown in the list of the Defendants. To proceed further it again has to be seen whether the status of the parties remained as co-sharers or not. I have already stated above that earlier the brother of Dilbagh Singh Defendant sold their interest in the properties in dispute and that share was successfully pre-empted by him. As per the admission of the Defendant himself, he was the owner of 4 Marlas of land only. Also on the perusal of the sale deeds P-1 and P-2 it stands established that the possession of the site sold under those sale deeds was actually delivered to the Plaintiff and his brother Mohan Singh. It clearly suggests that the Defendant was in possession of his own share and the vendors of the Plaintiff and his brother were in possession of their own share; so much so, P.W.3 Lashkar Singh attorney of Sardar Singh Plaintiff, deposed on oath that the land had already been partitioned and the parties to the suit were in possession of their respective shares. Chain Singh also admits that Dilbagh Singh raised 5 shops on the land. Even the stand of Dilbagh Singh himself in the written statement is that he constructed the shops in the year 1966. In this view of the matter it can be safely said that the parties did not remain co-sharers.

Now it is to be seen whether the Defendant was in possession of more area then the one of which he was the owner and in this regard I can safely rely upon the report of the Local Commissioner and the map (Ex.LC/1) prepared by him. The Local Commissioner gave a clear finding against the Defendant and in favour of the Plaintiff to the effect that 1 Marla and 2 Sarsais of the land is in excess under the possession of the Defendant and that the Plaintiff and his brother Mohan Singh are in loss of the area measuring 1 Marla and 2 Sarsais. In these circumstances it can be safely said that the Plaintiff and his brother have been able to prove their title in respect of 1 Marla and 2 Sarsais of land, which is unauthorised possession of the Defendant. The Defendant is duty bound to restore the possession to the Plaintiff and he cannot be allowed to continue with the structure which was constructed by him on the land of the Plaintiff and his brother.

Learned Counsel for the Respondent has relied upon an authority of this Court reported as Sant Ram Nagina Ram v. Daya Ram Nagina Ram and Ors. AIR 1961 Punjab 528. This authority is not applicable to the facts of this case. I have already held above that the parties were not co-sharers on the date of the institution of the suit. Rather the parties became separate owners and they were in respective possession of their sites. The Plaintiff nowhere alleges or admits the status of co-sharer between him and the Defendant.

Resultantly, I set aside the findings of the learned first appellate Court on issues Nos. 1 and 2 and restore the findings of the trial Court on these issues.

In the light of the above discussion. I accept this appeal and set aside the judgment and decree of the first appellate Court dated 12th March 1979, and decree the suit of the Plaintiff-Appellant for possession in the light of the observations and directions given para 14 of the judgment dated 21st November. 1975 of the trial Court. The parties are, however, left to bear their own costs.