Sukhdev Singh vs Charan Dass

Harphul Singh Brar, J.—This a Regular Second Appeal against the judgment of the learned Additional District Judge, Gurdaspur, dated March 7, 1991 vide which he set aside the judgment and decree, dated June 13, 1989 of Shri N.K. Goel, Subordinate Judge First Class, Gurdaspur.

Briefly stated, the facts are that the plaintiff respondents in this appeal sought a decree for permanent injunction restraining the defendant - appellants from interfering in their possession and of other co-sharers or dispossessing them from the land measuring 8 kanals 16 Marias, detailed in the head-note of the plaint, as mentioned in the jamabandi for the year 1981-82. The allegations made in the plaint were that plaintiffs and other co-owners were owners in possession of the suit land and the defendant - respondents had no right, title or interest in the same. They were strong and influential persons and threatened to dispossess them (Plaintiffs) forcibly.

The defendant - appellants in their written statement had alleged that they were in possession of land measuring 3 kanals out of the suit land on the basis of the Sale Deed, dated July 6, 1986 executed in their favour by Smt. Meli Devi for a consideration of Rs. 10,000/-. According to them, suit land was shown to be in possession of all the co-sharers. Since they had purchased 3 kanals of land, they became co-sharers with the plaintiffs and in such capacity were in possession of 3 kanals out of the suit land in which they had sown paddy.

The plaintiffs in their replication denied the factum of Sale Deed in favour of the defendants and reiterated the averments made in the plaint.

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

(1) Whether the plaintiffs along with other co-sharers are owners in possession of the suit land ? OPP.

(2) Whether the defendants purchased land measuring 3 kanals from Smt. Meli Devi vide registered sale deed dated 8.7.1986? If so, its effect? OPD.

(3) Whether the plaintiffs are entitled to the injunction prayed for ? OPD.

(4) Relief.

The learned trial Court decided Issue No. 1 in favour of the plaintiffs. On Issue No. 2, the trial Court found that the Sale Deed set up by the defendants was not proved. However from the entries in the revenue record, it was held that Meli Devi had sold her share measuring 1 Kanal 5 marlas being 25/74th share in favour of the defendants for which mutation had been sanctioned. The trial Court thus, found that in a suit for injunction the Court was not required to decide the question of title but held that the defendants were co-sharers in the suit property along with the plaintiffs.

Issue No. 3 was decided against the plaintiffs on the premises that a cosharer was not entitled to get injunction against the other co-sharers.

As finding on Issue No. 1 was not questioned by either party before the appellate Court, the findings on this Issue was, thus, affirmed by the lower appellate Court.

The learned lower appellate Court set aside the findings on Issues Nos. 2 and 3 of the learned trial Court and decided these issues in favour of the plaintiffs and against the respondents.

This finding of the lower appellate Court has been questioned in this Regular Second Appeal.

After hearing the learned Counsel for the respondents and going through the record of the case, I do not find any infirmity in the judgment of the lower appellate Court. The finding of the trial Court on Issue No. 2 has rightly been reversed by the lower appellate Court. It has been specifically averred by the defendants in their written statement that they had purchased land measuring 3 kanals out of the suit land vide Sale Deed, dated July 8, 1986 from Meli Devi, but no Sale Deed had been proved by them. Still the trial Court held that the defendants were co-sharers in the suit land, which finding of the trial Court is un-Sustainable. Once Issue No. 2 was decided in favour of the plaintiffs, Issue No. 3 was also rightly decided in favour of the plaintiffs by the lower appellate Court. In accordance with the revenue record, the plaintiffs were recorded to be in possession of the suit land. One Aas Kaur was co-sharer in the suit land. The Revenue Authorities had attested mutation of her inheritance in favour of Bawi Devi, Muni Devi and Meli Devi on the premises that they were daughters of Aas Kaur. The case of the plaintiffs was that the said women were not daughters of Aas Kaur and, as such, were not entitled to inherit any property of Aas Kaur. In any case, Meli Devi had not been found to be in possession of any part of the suit and, nor she could deliver possession to defendants and no sale is proved to have been made by Meli Devi or anyone else in favour of the defendants. The learned lower appellate Court finally passed a decree for possession of the entire suit land detailed in the head-note of the plaint as during the course of trial, it was brought to the Court''s notice that defendants had forcibly occupied the suit land. As the learned counsel for the respondents could not rebut this assertion, that fact impelled the lower appellate Court to pass a decree for possession in favour of the plaintiffs.

In view of my discussion made above, I do not find any infirmity in the judgment of the lower appellate Court which is upheld and the Appeals dismissed.

No order as to costs.