Satish Kumar and Another vs Satnam Singh and Others

Paramjeet Singh, J.—This regular second appeal is directed against the judgment and decree dated 02.05.2012 passed by learned Civil Judge (Junior Division), Fazilka whereby the suit for permanent injunction filed by the appellants/plaintiffs, has been dismissed as well as against the judgment and decree dated 10.09.2013 passed by learned Additional District Judge, Fazilka, whereby the appeal preferred by the appellant/defendant has also been dismissed.

For convenience sake, reference to parties is being made as per their status 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 plaintiffs filed a suit for permanent injunction on the averments that plaintiffs are owners in possession of land measuring 26 kanals 04 marlas comprised of Rect. Nos. 14 killa No. 8(8-0) 10(7-0), 9(8-0), Rect. No. 13, Killa No. 6/2(0-18), 6/1 min (2-2), Khewat No. 114, 106, Khatoni No. 229, 217 as per jamabandi for the year 2003-2004 situated in the revenue estate of village Behak Hasta Uttat, Tehsil Fazilka. Previously, defendant No. 3 was owner in possession of the said land being 464/2609 share of 130 kanals 9 marlas comprised of khewat No. 105 i.e. 1/2 share of rect. No. 13, Killa No. 6/2(0-18), 15/2(1-2), Khewat No. 114 of 40/323 share of land measuring 16 kanals 3 marlas comprised of Rect. No. 10, Killa No. 23/2(7-0), 24/1(2-1), Rect. No. 13, Killa No. 6/1(7-2), Khewat No. 106. The defendant No. 3 sold the suit land in favour of the plaintiffs for valuable consideration vide registered sale deed dated 7.6.2005 and delivered the actual physical and vacant possession to the plaintiffs. The mutation No. 2398 stands sanctioned in this regard. The delivery of possession of specific khasra numbers is also mentioned in the sale deed itself. The defendants have got no right to interfere in the ownership or possession of the suit land.

Upon notice defendants appeared and filed written statement inter alia taking preliminary objections that the suit is not maintainable, plaintiff has come to Court with unclean hands, plaintiff has no cause of action and locus standi to file the suit etc. On merit, it was averred that the plaintiffs had purchased 26 kanals 04 marlas i.e. 464/2609 share. The plaintiffs had not purchased the specific khasra numbers, rather they purchased the land as share. The plaintiffs had promised to re-pay the loan to the bank on the said land which still has not been re-paid by them nor they have paid balance sale consideration to defendant No. 3. There is no delivery of possession of any specific khasra of the land.

Plaintiff filed replication to the written statement denying the averments in the written statement and reiterating the averments in the plaint.

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

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

2 Whether the suit is not maintainable ? OPP

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 appellants/plaintiffs 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 appellants and perused the record.

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

Whether a person who has delivered owner in possession through registered sale deed then vendor or his successor can be challenged without any legal right?

Whether the principle of estoppels applied u/s. 41 of the Transfer of Property Act?

Whether a person can challenge the sale deed through his son in collusive way?

Whether every share holder having right each parcel of land in the joint khata?

Whether any share holder can restrain the other co-sharer by using brute force?

Whether the judgment and decree passed by the courts below are based upon misreading of evidence, surmises and conjectures?

Learned counsel for the appellant has vehemently contended that vide the sale deed he has purchased specific Khasra numbers and he was delivered possession by defendant No. 3 Joginder Singh. Learned counsel further contended that the learned courts below have misread and misinterpreted the evidence on record, therefore, the impugned judgment and decree are perverse and cannot be sustained.

I have considered the contentions of the learned counsel for the appellants.

Perusal of the jamabandi for the year 2003-2004 Ex. P2, shows that the suit land along with other land has been shown to be the joint ownership and cultivating possession of Satnam Singh, Des Singh and Joginder Singh (i.e. defendants No. 1 to 3). Jamabandi for the year 2008-2009 indicates that in the cultivation column, possession of the co-sharer has been mentioned. Plaintiff has failed to show his exclusive possession over the suit land. The Court of first instance after appreciating the evidence on record has recorded the following findings:-

After appreciating and evaluating the rival submissions of the parties, it emerges out that the plaintiffs are seeking restraint order against the defendants from causing any sort of interference into peaceful possession of plaintiffs as owners or otherwise dispossessing the plaintiffs illegally, forcibly and without due course of law from the land measuring 26 kanals 04 marlas (i.e. suit land) alleging that they have purchased the same from defendant No. 3 Joginder Singh vide sale deed dated 7.6.2005, who delivered the actual physical and vacant possession of the suit land to the plaintiffs at the spot pertaining to specific khasra numbers and there is also recital regarding delivery of possession of specific khasra numbers in the sale deed itself. The said sale deed has been proved on file as Exh. P1. But, at the same time, perusal of jamabandi for the year 2003-04 Exh. P2 shows that the suit land along with other land has been shown to be the joint ownership and cultivating possession of Satnam Singh, Des Singh and Joginder Singh (i.e. defendants No. 1 to 3) and the suit land i.e. killa No. 8, 9, 10 of khasra No. 14 and killa No. 6/1 and 6/2 of khasra No. 13 has not been shown to be in cultivating possession of defendant No. 3 Joginder Singh. So, how Joginder Singh could have delivered the possession of specific khasra numbers to the plaintiffs. Perusal of jamabandi for the year 2003-2004 Ex. P2 shows the cultivating possession of Satnam Singh, Des Singh and Joginder Singh over khasra No. 14, killa No. 8(8-0), 10(7-4), Des Singh has been shown to be in khasra No. 14//(8-0) and 13//6/1(7-2) and Satnam Singh and Joginder Singh have been shown to be in cultivating possession over khasra No. 13//6/2(0-18). By virtue of the sale deed Ex. P1 dated 7.6.2005, the plaintiffs have become co-sharers in joint holding with the others and they are not considered to be in cultivating possession of specific khasra numbers because the khasra numbers, which have been sold by Joginder Singh were not in his exclusive cultivating possession. Moreover, PW1 Ramandeep Kumar (plaintiff No. 2) himself admitted during his cross-examination that the khasra girdwari respecting suit land is presently being recorded in the name of the defendant and they had purchased only share out of the joint land. Since the plaintiffs'' exclusive possession over the suit land has not been proved and the parties are recorded to be in joint possession and co-sharers, so the plaintiffs cannot seek injunction against other co-sharers until and unless the joint holding is partitioned by metes and bounds. Therefore, the proper remedy available with the parties is to seek partition of the joint holding from the competent court of law. As such, the plaintiffs are not entitled to the relief of permanent injunction as prayed for. Therefore, this issue is decided against the plaintiffs and in favour of defendants.

The above finding of fact has been affirmed by the learned lower Appellate Court.

Learned counsel for the appellants has failed to show that findings recorded by both the courts below are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record. Consequently, concurrent findings recorded by both the courts below do not warrant interference in this second appeal. No question of law, muchless substantial question of law, as alleged, arises for adjudication in this second appeal.

No other point has been urged.

Dismissed in limine.