Jammu & Kashmir High Court
Reserved On: 21-10-2022 vs Geeta Charak Nee Jamwal on 29 October, 2022
Sr. No. 134
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU 1.
2.
3.
4.
5.
6.
CM(M) No. 117/2022
CM No. 5967/2022
CAV No. 1332/2022
Reserved on: 21-10-2022
Pronounced on: 29-10-2022
0
Rajeshwar Singh (age 67 years) S/O Sh. Rattan ....Petitioner(s)
Singh R/O Village Raipura Domana Tehsil
Jammu North District Jammu.
Through :- Sh. Rakesh Chargotra, Advocate.
V/s
1. Geeta Charak Nee Jamwal W/O Jagjit Singh ....Respondent(s)
R/O House No. 276-B Old Rehari Jammu;
2. Pushpa Gujral W/O Late Mohinder Singh R/O
Subhadra Colony Sarai Rohilla Delhi C/O
Geeta Charak R/O House No. 276-B Old
Rehari Jammu.
3. Virender Singh S/O Rattan Singh R/O Village ...Proforma-respondent(s)
Raipura Domana Tehsil Jammu North District
Jammu;
4. Jagjit Singh S/O Sh. Rattan Singh R/o house
No. 276-B Old Rehari Jammu.
7.
Through :- Ms. Zoya Bhardwaj, Advocate for R-1.
CORAM:- HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
O R D E R
29 -10 - 2022
1. Petition under Article 227 of the Constitution of India has been preferred by
the petitioner seeking quashment of order dated 06-10-2022 passed by Ld.
District Judge Jammu in file No. 87/Civil Appeal titled Geeta Charak &
Ors v/s Rajeshwar Singh & ors, whereby the Misc. Appeal filed by
respondent No.1 challenging order dated 30.06.2022 passed by the Trial
Court of 2nd Civil Subordinate Judge (Passenger Tax) Jammu qua land
measuring 1 kanal 1 marla falling under survey No. 2380 min situated at
village Raipura Dumana Tehsil Jammu whereby status-qua maintained on
spot in regard to the aforesaid suit property was modified and respondent
No.1 was directed not to create any 3rd party interest. Aggrieved of the
impugned order dated 06.10.2022, petitioner has questioned its legality,
propriety and correctness on the following grounds:
(i) that the petitioner had filed a suit for declaration declaring sale deed
executed by respondent No.2 on 17.09.2018 and registered on
18.09.2018 in favour of respondent No.1 qua the suit land measuring
1 kanal 1 marla falling under survey No. 2380 min situated at village
Raipura Dumana Tehsil Jammu as null and void inoperative and not
binding upon rights of petitioner and proforma respondents so far it
relates to land measuring 4 kanals, 6 marlas falling under Khasra
No. 2380 as respondent No.1 was not competent to execute the
aforesaid sale deed being Gair Hazir and Gair Kabiz and the land
being in joint possession of petitioner and proforma respondents on
the basis of Hissedari Khast, with consequential relief of injunction
restraining the defendants to dispossess the petitioner and proforma
respondents from the joint possession of the aforesaid land and also
from changing its nature;
(ii) that the grandfather of plaintiff namely Gurdutt Singh alongwith his
co-sharer was owner in possession of land falling under various
Khasra Nos. including Khasra No. 2380 min and after his demise the
land owned by him including aforesaid land measuring 4 kanals, 6
marlas devolved upon the father of petitioner and aunt (Bua) of
petitioner (i.e. respondent No.2) by way of mutation confirming 3
shares of property upon father of petitioner and one share of
property upon respondent No.2 whose marriage was solemnized in
early 1960 and thereafter she settles at Delhi and never cultivated
the land inherited by her from her father, no separate share were
allotted to her father and the land was in exclusive possession of
petitioner's father since decades and he perfected his title by way of
adverse possession and no partition took place and the land is still in
joint possession of petitioner and proforma respondents and ever
since no partition has taken place interse them, though respondent
No.2 is recorded in cultivating column of Khasra Girdawari but the
fact remains that she had abounded the land after her marriage and
has become absentee landlord having no possession over even inch
of the land left by her father, therefore, was not competent to
execute the sale deed dated 18.09.2018;
(iii) that the sale deed dated 18.09.2018 was in fact executed without
having any actual physical possession in favour of respondent No.1
who is stranger to the property, but she had made every effort to
dispossess the petitioner and proforma respondents from their joint
possession with the help of some gunda elements, pursuant thereto, a
suit was filed by petitioner and the Ld. Trial Court of 2nd Civil
Subordinate Judge (Passenger Tax) Jammu on the 1st date of hearing
was pleased to pass an order dated 09-02-2021, whereby, parties
were directed to maintain status-qua on spot, respondents caused
appearance, whereby respondent No.1 filed the written statements
challenging the maintainability of the suit, as well as respondent
No.1 took the stand that suit land was never partitioned, thus the fact
remains that the land was joint on the day of execution of sale deed
on 18.09.2018;
(iv) that the trial court after hearing both the parties was pleased to pass
an order dated 30.06.2022, whereby, petitioner's application was
allowed and interim order of status qua dated 09.02.2021 was made
absolute, thereby the order dated 30.06.2022 of trial court was
challenged by way of Misc Appeal bearing file No. 87/Civil Appeal
and the Ld. Pr. District Judge Jammu wrongly modified the order
directing respondent No.1 not to create any 3rd party interest, and in
order to protect the lies and to prevent the multiplicity of litigation
parties were required to be directed to maintain status qua with
regard to construction and alienation;
(v) that it was also the case of the petitioner before the trial court that co
sharer can sell the co-owned joint property, but cannot transfer the
possession of the particular piece of land, until the land is partitioned
by meets and bounds, suit property was joint on the day of execution
of impugned sale deed as no partition had taken place, purchaser of
co-purchaser/co-sharer of undivided interest of undivided joint
property is not entitled to possession of the land which he has
purchased because his only right is for sue for partition of property
and ask for allotment to him/her of such share;
(vi) that the Ld. 1st Appellate Court had recorded the contradictory
finding that particular portion of land cannot be claimed by the
vendee, while on the other hand the Ld. Appellate Court has
recorded the finding that possession has been delivered to
respondent No.1 (vendee) who claims to have purchased the
property by virtue of impugned sale deed and is adamant to raise
construction over the prime land, and in case she succeeds,
petitioner would be non- suited, the Ld. Appellate court has upset
the finding of the trial court on the ground that respondent No1 has
purchased the property cannot be prevented from enjoying the same,
though respondent No.1 has been allowed to raise construction
which would multiplying litigation among the parties and petitioner
would be non-suited.
2. Sh. Rakesh Chargotra, Advocate, Ld. Counsel appearing on behalf of the
petitioner while reiterating the stand taken by him in the memo of petition
for quashment/setting aside of impugned order dated 06.10.2022, has
vehemently argued, that the suit land is in joint ownership and possession of
the petitioner alongwith respondent No.2 and proforma respondents 3&4,
no co-sharer has right to raise any type of construction on any portion of
suit land unless that portion is in exclusive possession of that co-sharer,
undivided share of co-sharer may be subject matter of sale but the
possession cannot be handed over to the vendee (i.e. respondent No.1)
unless the property is partitioned by metes and bounds amicably and
through mutual settlement or a decree of the court. It is argued, that the suit
preferred by petitioner is for declaration and injunction and if the suit
property is not preserved and kept in status quo till the outcome of the
litigation, the petitioner would become relief less and non-suited which will
further add to the multiplicity of the litigation between the parties and to
avoid such an eventuality, the suit property has to be maintained in status
quo till the same is partitioned among the parties. It is further argued, that a
purchaser of coparcener's interest (vendee) in the joint family property is
not entitled to possession of what he has purchased, he has a right only to
sue for partition of the property and ask for allotment of his share in the said
property. It is moreso argued, that the suit land was in exclusive possession
of petitioner's father since decades who had perfected his title by way of
adverse possession, no partition has taken place, though respondent No.2 is
recorded in cultivation column of Khasra Girdawari but the fact remains
that respondent No.2 (Pushpa Gujral, sister of petitioner's father namely
Rattan Singh) has abandoned the land after her marriage and settlement at
Delhi in the year 1960 and she is therefore absentee landlord not in
physical possession of the suit land, therefore, the construction being raised
by respondent No.1 (vendee) on the suit land which is un-partitioned is
detrimental to the interest of petitioner. In support of his arguments, Ld.
Counsel has relied upon the decisions reported in, (i) AIR 2009 Supreme
Court 2735 [Ramdas--Appellant Versus Sitabai & Ors. Respondents], (ii)
2009 (10) SCC 654 [Gajara Vishnu Gosavi--Appellant Versus Prakash
Nanasahed Kamble & Ors--Respondents] & (iii) AIR 1979 Supreme
Court 1142 [Padminibai--Appellant Versus Tangavva and others--
Respondents].
3. Ms. Zoya Bhardwaj Advocate, Ld. Counsel for respondent no.1 while
vehemently supporting the upholding/confirming of impugned order dated
06.10.2022 rendered by the Court of Pr. District Judge Jammu, has
strenuously articulated arguments, that the suit before the trial court as well
as the petition in hand commenced by the petitioner (plaintiff) is not
maintainable because respondent No.1 (defendant no. .2 in the trial court)
has purchased land comprising in Khasra No. 2380 min measuring 1 kanal 1
marla situated at village Raipura Dumana Tehsil Jammu by virtue of sale
deed duly executed on 17-09-2018 and registered on 18-09-2018 before
Sub-Registrar Jammu to the knowledge of petitioner and proforma
respondents (defendants before the trial court), the ground urged by
petitioner that respondent No.2 (defendant No.1 in the trial court) was not
competent to execute sale deed being Gair Hazri and Gair Kabiz is against
facts and contrary to the revenue record and not legally sustainable as the
Girdawari entry of the year 2018 when the sale deed was executed clearly
depicts the name of respondent No.2 as owner in cultivating possession. It
is argued, that respondent No.2 on the basis of Jamabandi, mutation and
Girdawari entry had the legal right to execute the sale deed regarding
subject matter of the suit property to the extent of her share in the land,
rather respondent No.2 is entitled to further share of 1 kanal, 2 marlas of
land out of Khasra No. 2380 min, respondent No.1 (vendee) has already
taken possession of the land by virtue of sale deed, petitioner is out of
possession of the land measuring 1 kanal, 1 marla of Khasra No. 2380 min
and cannot maintain suit for injunction which is equitable relief and cannot
be exercised in favour of the petitioner. It is moreso argued, that the
suit/petition is hit by section 42 of Specific Relief Act as no injunction can
be granted in favour of a co-sharer and against another co-sharer without
seeking the relief of possession, a co-owner has right to possess, right to
enjoy and right to dispose of his share from the joint property and also has
right to raise construction in that portion of land which is in his exclusive
possession. It is further argued, that in the case in hand respondent No.2 as
per the revenue records was in exclusive possession of the suit land, she has
a legal right to dispose of the same, petitioner has no prima-facie case in
his favour, the balance of convenience for grant of relief of injunction does
not lie in favour of petitioner, on the contrary respondent No.1 who has
purchased the suit land from respondent No.2 by virtue of registered
document of sale which prima-face would be valid in law, if restrained
from enjoyment of his property, it will cause huge irreparable loss to her
which would not be compensated in terms of damages. To buttress her
arguments, ld. Counsel has relied upon the rulings reported in, (i) AIR 1993
Supreme Court 76 [Dalpat Kumar and Anr. Vs. Prahlad Singh & Ors.],
(ii) Civil Appeal Nos. 3683-3684 of 2020 (arising out of SLP (C) Nos.
29775-29776 of 2019) [Rattan Singh and ors -Appellant versus Nirmal
Gull & Ors etc--Respondents].
4. Heard ld. Counsel for the parties, perused their pleadings and considered the
ratios of the Judgments relied by ld. Counsel for the parties. I have also
gone through the record available on the file meticulously and have
bestowed my thoughtfully consideration to the material aspects involved in
the case. The principle of law relating to temporary injunction during
pendency of the suit is well recognized in the decision of Hon'ble Supreme
Court reported In AIR 1993 SC 276 (Dalpat Kumar v Prahlad Singh).
For convenience, the relevant portion of the observations of the Supreme
Court in the said case are extracted here under:-
".......... It is settled law that the grant of injunction is a
discretionary relief. The exercise thereof is subject to the court
satisfying that:
(i) there is serious disputed question to be tried in the suit and
that on act, on the facts before the court, there is probability of
his being entitled to the relief asked for by the
plaintiff/defendant;
(ii) the court's interference is necessary to protect the party from the
species of injury. In other words, irreparable injury or damage
would ensue before the legal right would be established at trial;
and
(iii)the comparative hardship or mischief or inconvenience which
is likely to occur from withholding the injunction will be greater
than that would be likely to arise from granting it.‖
The Supreme Court further observed:-
"................ Prima facie case is not to be confused with prima facie
title which has to be established, on evidence at the trial. Only prima
facie is a substantial question raised, bona fide, which needs
investigation and a decision on merits. Satisfaction that there is a prima
facie case by itself is not sufficient to grant injunction. The court further
has to satisfy that no-interference by the court would result in
‗irreparable injury' to the party seeking relief and that there is no other
remedy available to the party except one to grant injunction and he
needs protection from the consequences of apprehended injury or
dispossession.
‗Irreparable injury', however, does not mean that there must be no
physical possibility of repairing the injury, but means only that the
injury must be a material one, namely one that cannot be adequately
compensated by way of damages. The third condition also is that the
‗balance of convenience' must be in favour of granting injunction. The
court while granting or refusing to grant injunction should exercise
sound judicial discretion to find the amount of substantial mischief or
injury which is likely to be caused to the parties., if the injunction is
refused and compare it with that is likely to be caused to the other side
if the injunction is granted. On weighing competing possibility or
probabilities of likelihood of injury and if the court considers that
pending the suit, the subject matter should be maintained in status quo,
an injunction would be issued. Thus the court has to exercise its sound
judicial discretion in granting or refusing the relief of ad-interim
injunction pending the suit.
5. In view of the rival contentions of the Ld. Counsel for the parties, the moot
question for consideration is, ―whether the petitioner has satisfied the
conditions for grant of an order of injunction‖. Law is well settled, that
granting or refusing of a temporary injunction is covered by three well
established principles,
(a) whether petitioner has made out a prima facie case;
(b) whether the balance of convenience is in his favour;
(c) whether petitioner will suffer irreparable injury if temporary
injunction is not granted.
(a) PRIMA - FACIE CASE:-
The parties who seek the aid of the court for
injunction must show that the act complained of is in violation of his right
and whether there is a fair and substantial question to be decided between
the parties and there is a bona fide contention between the parties. If such
conditions are available, the relief may be granted. It is then the duty of the
court to consider the materials placed on record in the matter of granting or
refusing to grant temporary injunction and considering the documents, such
an order can be passed. Considering a document does not mean mere
reference to order, but there must be some discussion regarding the
documents before coming to a conclusion. Applying the aforesaid principle
to the facts of the writ petition in hand for grant of temporary injunction, it
would be my endeavor to reflect he pleadings of the parties in the instant
petition/suit. For the sake of convenience, petitioner is the ―plaintiff‖ before
the trial court of 2nd Civil Subordinate Judge (Passenger Tax) Jammu,
whereas, respondents are the ―defendants‖ before the said court. As per
plaint averments, petitioner/plaintiff has preferred a suit before the trial
court for declaration declaring the sale deed executed by respondent No.2
on 17-09-2018 & registered on 18-09-2018 in favour of respondent No.1
qua the suit land measuring 1 kanal 1 marla falling under survey No. 2380
min situated at village Raipura Dumana Tehsil Jammu as null and void
inoperative and not binding upon the rights of petitioner and proforma
respondents on the grounds, that the suit land is in joint possession of
petitioner and proforma respondents; grandfather of plaintiff namely
Gurdutt Singh alongwith his co-sharer was owner in possession of the land
after whose demise the land has devolved upon father of petitioner and
respondent No.2 (aunt/Bua) who was married in 1960 and has settled in
Delhi therefore she has never cultivated the aforesaid inherited land which
was in exclusive possession of father of petitioner and proforma
respondents since decades and who perfected title by way of ―adverse
possession‖; no partition has taken place; respondent No.2 was not in
possession of an inch of the land left behind by her father as she has
become ―Gair Hazir‖ and ―Gair Qabiz‖ of the estate left by her father;
respondent No.2 was not competent to execute the sale deed on 18.09.2018
as she was not in actual physical possession of the suit land and therefore
no right or title existed with respondent No.2; respondent No.1 is trying to
dispossess the petitioner from the suit land and is threatening to alienate or
create 3rd party interest in the suit land. In her written statements filed by
answering respondent No.1 before the trial court, it has been specifically
contended, that the suit of petitioner is not maintainable because respondent
No.1 has purchased suit land measuring 1 kanal 1 marla situated at village
Raipura Dumana Tehsil Jammu comprised in survey no. 2380 min from
respondent No.2 vide sale deed executed on 17-09-2018 and registered on
18-09-2018 before Sub-Registrar Jammu to the knowledge of petitioner and
proforma respondents. It is contended, that the ground urged by petitioner
that respondent No.2 was not competent to execute the sale deed being
―Gair Hazir‖ and ―Gair Qabiz‖ owner is against the facts and contrary to the
revenue record which depict that the Girdawari entry of 2018 when the sale
deed was executed reflects the name of respondent No.2 as owner in
cultivating possession of suit land. It is moreso contended, that respondent
No.2 on the basis of jamabandi, mutation and girdawari entries has the legal
right to execute sale deed being co-sharer of the suit land, respondent No.1
has already taken possession of the suit land, petitioner's suit for injunction
is non-maintainable as no injunction can be granted in favour of co-sharer
against a co-sharer without seeking relief of possession.
Now, I would like to refer the judgments relied by Ld. Counsel for
the parties to find out, whether in the facts and circumstances of the case
and the pleading of the parties, petitioner has a case for grant of equitable
relief of injunction in his favour as compared to respondent No.1.
Judgments Relied By Ld. Counsel For The Petitioner:
In AIR 2009 Supreme Court 2735 [Ramdas--Appellant Versus Sitabai
& Ors--Respondents] relied by Ld. Counsel for petitioner, Hon'ble
Supreme Court of India while observing that an undivided share of co-
sharer may be subject matter of sale but possession cannot be handed over
to the vendee, in paragraphs 15,16,17,19&20 of the judgment held as
under:-
15.Without there being any physical formal partition of an undivided
landed property, a co-sharer cannot put a vendee in possession
although such a co-sharer may have a right to transfer his undivided
share. Reliance in this regard may be placed to a decision of this Court
in M.V.S. Manikayala Rao V. M. Narasimhaswami & Ors.1 [AIR
1966 SC 470], wherein this Court stated as follows:
"Now, it is well settled that the purchaser of a co-parcener's
undivided interest in the joint family property is not entitled
to possession of what he had purchased. His only right is to
sue for partition of the property and ask for allotment to him
of that which, on partition, might be found to fall to the
share of the co- parcener whose share he had purchased."
16.It may be mentioned herein that the aforesaid findings and the
conclusions were recorded by the Supreme Court by placing reliance
upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs.
Bhubneshwar Prasad Narain Singh & Ors.2 [AIR 1953 SC 487],
wherein this Court held as under:-
―All that (vendee) purchased at the execution sale, was the
undivided interest of co-parcener in the joint property. He did
not acquire title to any defined share in the property and was not
entitled to joint possession from the date of his purchase. He
could work-out his rights only by a suit for partition and his
right to possession would date from the period when a specific
allotment was made in his favour.‖
17.In view of the aforesaid position there could be no dispute with
regard to the fact that an undivided share of co-sharer may be a
subject matter of sale, but possession cannot be handed over to the
vendee unless the property is partitioned by metes and bounds
amicably and through mutual settlement or by a decree of the Court.
19. Therefore, what the appellant has claimed is only half share of the
said property. The said issue has been considered at length by the
High Court in its impugned judgment. The High Court has recorded
the statement made by the counsel appearing for the defendant No.3-
Ramdass (appellant herein) that the action of the Additional District
Judge in declaring that the said sale deed as null and void was not
proper to the extent of the shares of plaintiff- Sitabai in the Gat No. 19
area admeasuring 2.56 H of Mouza Padoli. Therefore, the fact that the
plaintiff-Sitabai was entitled to her half share in the aforesaid property
is an admitted position and on that basis the consent decree was
passed. Even otherwise, we are of the considered opinion that the
appellant herein having purchased only undivided share in the
aforesaid property could not have purchased, owned and claimed for
more than half share in the said property nor the appellant could have
claimed possession in respect of the entire property. The appellant
herein has further claimed relief on the ground of equity. However,
we do not find any reason to hold in favour of the appellant even on
the ground of equity as the appellant herein himself is responsible for
his act in purchasing undivided share in a part of the suit property
without the knowledge and consent of the co-sharer. Besides,
indisputably and as held by the Trial Court, the land in Gat No. 19 is
extremely valuable and, therefore, the question of equity does not
arise as we would be doing injustice to one having title and ownership
if we accept the prayer of the appellant.
20.Consequently, we find no reason to interfere with the judgment and
order passed by the High Court and therefore we are of the considered
view that the decrees passed by the first appellate court and the High
Court are in accordance with law. The same are affirmed.
Accordingly, we issue a direction to appellant herein to handover
possession of field Gat No. 19 area admeasuring 2.56H of Mouza
Padoli, Tahsil & Distt., Chandrapur to the plaintiff-Sitabai within a
period of three months from today failing which the plaintiff-Sitabai
would be entitled to initiate appropriate proceedings for execution of
the decree in which case possession of the half portion of the aforesaid
property shall be made and given in favour of the plaintiff-Sitabai.
In 2009 (10) SCC 654 [Gajara Vishnu Gosavi--Appellant Versus Parkash
Nanasahed Kamble & Ors--Respondents] relied by Ld. Counsel for
petitioner, Hon'ble Supreme Court of India has held that a purchaser of co-
parcener's undivided interest in the joint family property is not entitled to
possession whatever he has purchased, he has right only to sue for partition
and ask for allotment of his share in the suit property.
In AIR 1979 Supreme Court 1142 [Padminibai--Appellant Versus
Tangavva and others--Respondents] also relied by Ld. Counsel for
petitioner, Hon'ble Supreme Court of India has held, that if a person
remains in exclusive and open possession of a land adversely to the
defendant for a period of exceeding 12 years he then acquires ownership by
prescription.
By the ratios of the judgments of "Ramdas's case" (AIR 2009
Supreme Court 2735), "Gajara Vishnu Gosavi's case" (2009 (10) SCC
654) and "Padminibai's case" (AIR 1979 Supreme Court 1142) (Supra)
relied by Ld. Counsel for petitioner, Hon'ble Supreme Court has laid down
an invariable principle of law that an undivided share of co-sharer may be
subject matter of sale but the purchaser of co-parcener's undivided interest
in the joint family property is not entitled to possession of what he had
purchased and is only right is to sue for partition of the property and ask for
allotment of his share in the suit property.
Judgments Relied By Ld. Counsel For Respondent No.1.
In AIR 1993 Supreme Court 76 (Dalpat Kumar and Anr. Vs. Prahlad Singh
and Anr.) relied by Ld. Counsel for respondent No.1, Hon'ble Supreme
Court has categorically held, that grant of injunction is discretionary relief
and can be exercised in favour of a party who has a prima-facie case in his
favour, balance of convenience lies in his favour and he would suffer
irreparable injury if injunction is refused.
In Civil Appeal No. 3683-3684 of 2020 (arising out of SLP (C) Nos. 29775-
29776 of 2019) [Rattan Singh and Ors. Versus Nirmal Gill and Ors etc.--
Respondents] also relied by Ld. Counsel for respondent No.1, Hon'ble
Supreme Court while observing that settled legal principle is that a
document is presumed to be genuine if the same is registered, in para 32 of
the judgment held as under:-
32. To appreciate the findings arrived at by the
courts below, we must first see on whom the
onus of proof lies. The record reveals that the
disputed documents are registered. We are,
therefore, guided by the settled legal principle
that a document is presumed to be genuine if
the same is registered, as held by this court in
Prem Singh and Ors. V Birbal and Ors8. the
relevant portion of the said decision reads as
below:
―27. There is a presumption that a registered
document is validly executed. A registered
document, therefore, prima-facie would be
valid in law. The onus of proof, thus, would
be on a person who leads evidence to rebut
the presumption. In the instant case,
respondent 1 has not been able to rebut the
said presumption‖.
Ratios of the judgments (Supra) relied by Ld. Counsel for respondent No.1
make the legal position abundantly clear, that the relief of injunction is
discretionary in nature, whereas, a registered document would be prima-
facie valid in law and is presumed to be genuine.
Applying the ratios of judgments (Supra) relied by Ld. Counsel
for the parties to the facts of the case in hand, it is apt to reiterate here, that
petitioner/plaintiff on one hand has claimed that the suit property measuring
1 kanal 1 marla in Khasra No. 2380 min is undivided co-parcener's
property among him and respondents 2,3&4 while on the other hand he
claims that the suit property/suit land was in exclusive possession of his
father since decades who perfected his title by adverse possession, and as
no partition has taken place, the suit land is still joint and undivided,
therefore, respondent No.2 has no right to sell the suit land. It is
unambiguously reiterated here, that the relief of injunction being equitable
relief is based on the principle that one who seeks equity must do equity,
meaning thereby, that the party who seeks the aid of the court to protect his
right must come to the court with clean hands. From the self contradictory
pleadings of the petitioner, it is discernible that petitioner is uncertain in
regard to his claim regarding the suit land and has approached this court as
well as the trial court with unclean hands. From the record/pleadings of the
parties, it is evident that respondent No.2 (vendor) has executed a sale deed
on 17-09-2018 regarding the suit land measuring 1 kanal 1 marla in Khasra
No. 2380 min situated in village Raipura Dumana Tehsil & District Jammu
and got it registered before Sub-Registrar Jammu on 18-09-2018 in favour
of respondent No.1 (vendee). The contents of sale deed demonstrate that
respondent No.2 (vendor) is exclusive owner in physical possession of the
suit land on the strength of revenue extracts of FARD INTIKHAB
JAMABANDI and AKS SHAJRA prepared and attested by concerned
revenue authorities. Proforma respondent No.3 who is real brother of the
petitioner has appended his signature on the sale deed acknowledging the
fact that respondent No.2 is exclusive owner in possession of the suit land.
Aks Shajra appended with the sale deed clearly demonstrate that the suit
land has been delineated and clearly demarcated which is evidence of the
fact that the suit land was in physical possession of respondent No.2.
Revenue extracts of Jamabandi annexed with the sale deed clearly depict
that respondent No.2 was in cultivating possession of the suit land. In
absence of any other document, the document of title record of rights raises
presumption of ownership and possession in favour of recorded person.
Though entries in revenue records are not conclusive but their importance
in a case for possession cannot be denied. Unless Khasra Girdawari entries
are shown to be false and suspicious they must be given a weight they
ordinarily deserve as Khasra Girdawari record is admissible u/s 35 of
Evidence Act. Entries in Jamabandi fall within the zone of record of rights
and a presumption of truth is attached thereto. Under Section 35 of
Evidence Act an entry in any public or official book, register or record or an
electronic record stating a fact in issue or relevant fact and made by public
servant in discharge of his official duty is itself a relevant fact. The
principle on which Section 35 is based is that law reposes such confidence
in public officers entrusted with the public duties, that it is presumed that
they will discharge with their duties with accuracy and fidelity. In the case
law relied by Ld. Counsel for respondent No.1 titled Rattan Singh and
Ors. Versus Nirmal Gill and Ors etc.--Respondents [Civil Appeal No.
3683-3684 of 2020 (arising out of SLP (C) Nos. 29775-29776 of 2019],
Hon'ble Supreme Court of India relying upon it's own decision rendered in
Prem Singh & Ors. V Birbal & Ors. ([2006) 5 SCC 353] has laid down
an invariable principle of law that a registered document would be a prima-
facie valid in law and is presumed to be genuine. Petitioner has not placed
on record any revenue extract muchless any documentary evidence to
demonstrate that the suit land is share of undivided co-parcener's property.
On the contrary, respondent No.3 real brother of the petitioner has
acknowledged the correctness of the contents of sale deed registered on 18-
09-2018 before Sub-Registrar Jammu whereby respondent No.2 has sold
her share of the property viz; the suit land to respondent No.1. Respondent
No.2 prima-face has established that she is absolute owner in physical
possession of the suit land. An absolute owner of a property has every right
to enjoy his/her property in the manner liked, and has every right to dispose
of the same. In legal parlance, it can be safely held that the suit land was in
exclusive ownership and possession of respondent No.2 at the time of
execution and registration of the sale deed in favour of respondent no.1. Not
only this, petitioner has also asserted his claim to the suit property by way
of adverse possession. Adverse possession is a hostile possession by clearly
asserting hostile title in denial of the title of the true owner. In Cheedella
Padmavathi & Others Vs. Cheedella Lakshminarasimha Rao (died) per
LRs and Others reported in 2015(5) ALT 634, it was held that a person
pleading adverse possession has no equities in his favour, since he is trying
to defeat the rights of true owner, thus it is for him to clearly plead and
establish all facts necessary for adverse possession. The Limitation Act
1963 is a key piece of legislation, elaborating on adverse possession. The
Act prescribes a period of 12 years for private parties and 30 years for
Government owned ones to stake claim for adverse possession. It is well
settled, that before a party can succeed in establishing title on the basis of
adverse possession, a plea to that effect must be specifically raised and it
must be pleaded that on which date the person entered in the property
adverse to the interest of the owner. In the case in hand, not an iota of
documentary evidence viz; any revenue extract has been placed on record
by the petitioner which could depict that on which date petitioner or his
predecessor-in-interest claimed adverse possession to the suit property. By
the contradictory pleadings of the petitioner/plaintiff, he has not approached
the court with clean hands, therefore, is not entitled to the equitable relief of
injunction. In view of the aforesaid discussion, I do not find a strong prima-
facie case in favour of petitioner muchless a debatable and arguable point
for consideration for his claim for equitable relief of injunction.
(b)BALANCE OF CONVENIENCE:- The next point for consideration is,
―whether the balance of convenience lies in favour of petitioner to ask for
grant of temporary injunction against answering/respondent No.1‖. As
discussed above, petitioner/plaintiff has not established a strong prima-facie
case for grant of temporary injunction in his favour. In the facts and
circumstances of the case, petitioner/plaintiff has not been able to establish
that there is fair and substantial question to be decided between the parties,
and there is a bona-fide contention between them. The balance of
convenience for grant of injunction, therefore, does not lie in favour of
petitioner.
(c) IRREPARABLE LOSS OR INJURY:- As discussed above, petitioner
has not carved out a strong prima-facie case in his favour for grant of
temporary injunction as against answering respondent No.1. Balance of
convenience for grant of injunction also does not lie in favour of the
petitioner. Petitioner will not suffer irreparable loss/injury as he has prima-
facie failed to demonstrate that he has any right/interest to the suit land.
6. In view of the aforesaid discussion, petition filed by the petitioner u/s 227 of
the Constitution seeking quashment of impugned order dated 06-10-2022
rendered by the court of Ld. Pr. District Judge Jammu in File No. 87/Civil
Appeal titled Geeta Charak V/s Rajeshwar Singh and Others being utterly
misconceived under law, is disallowed, rejected and dismissed. I do not find
any reason to interfere with the impugned order which is confirmed/upheld.
7. Disposed of accordingly alongwith all connected petitions.
(MOHAN LAL)
JUDGE
Jammu
29.10.2022
Vijay
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
