Punjab-Haryana High Court
Jagir Singh vs Tarsem Singh And Ors on 9 December, 2022
RSA No. 1595 of 2010 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No. 1595 of 2010 (O&M)
Date of decision : December 9th, 2022
...
Jagir Singh
................Appellant
vs.
Tarsem Singh and others
.................Respondents
Coram: Hon'ble Mr. Justice H. S. Madaan
Present: Mr. Deepak Verma, Advocate for the appellant.
Mr. Vipin Mahajan, Advocate for respondents No. 1 to 5, 7
and 8.
...
H. S. Madaan, J.
1. Briefly stated, facts of the case are that, plaintiff -
Karnail Singh s/o Jowand Singh, r/o village Kot Todar Mal, Tehsil
Gurdaspur, had brought a suit against his real nephews - Balbir
Singh and Jagir Singh (defendants), sons of Jarnail Singh,
residents of his village, seeking a decree for permanent injunction,
restraining the defendants from illegally and forcibly
dispossessing the plaintiff from the suit land measuring 7 Kanals
11 Marlas, situated at village Kot Todar Mal, H.B. No. 527, Tehsil
Gurdaspur.
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2. As per case of the plaintiff, he is a co-sharer in exclusive
cultivating possession of the suit land. The defendants being head
strong persons, were threatening to dispossess the plaintiff from
the said chunk of land, forcibly and illegally, not listening to the
requests of the plaintiff to desist from doing so, giving rise to a
cause of action to heirs to bring the suit in question.
3. On notice, only defendant No. 2 put in appearance and
filed written statement contesting the suit, raising various legal
objections, to wit that the suit was not maintainable; that the suit
was barred by the principle of res judicata etc. On merits, the
answering defendant contended that the plaintiff is not in exclusive
possession of the suit land, though plaintiff and defendants being
co-sharers in the joint land, stood admitted. Counter allegations
were levelled by defendant No.2 contending that it is the plaintiff
who is threatening to dispossess defendant No.2 from the suit land.
Refuting the other assertions, such defendant prayed for dismissal
of the suit.
4. It may be mentioned here that defendant No.1 had
refused to accept the service of summons, as such was proceeded
against ex parte
5. From the pleadings of the parties, following issues were
framed :-
1. Whether the suit is barred by the principle of res judicata ?
OPD
2. Whether the plaintiff is entitled to relief of permanent
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injunction as prayed for ? OPP
3. Relief.
6. Parties were given adequate opportunities to lead
evidence in support of their respective claims.
7. After hearing the arguments, the trial Court decided
issue No. 1 against the defendants and in favour of the plaintiff.
Issue No. 2 was decided, in favour of the plaintiff and against the
defendants. As a result of the findings on the issues, the suit of the
plaintiff was decreed and a decree for permanent injunction,
restraining the defendants from dispossessing the plaintiff from the
suit land forcibly and illegally, was passed in his favour by the trial
Court of Civil Judge (Junior Division), Gurdaspur, vide judgment
and decree dated 22.10.2003.
8. Feeling aggrieved by the judgment and decree passed by
the trial Court, defendant No.2- Jagir Singh, had knocked at the door
of Learned District Judge, Gurdaspur, by way of filing an appeal,
which was assigned to Additional District Judge, Gurdaspur.
However, that appeal was dismissed with costs, vide judgment dated
5.10.2009.
9. Still feeling dissatisfied, defendant - Jagir Singh has
approached this Court, by way of filing Regular Second Appeal,
notice of which was given to the respondents.
10. It may be mentioned here that in the meanwhile, Karnail
Singh - plaintiff had expired and his legal representatives were
brought on record.
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11. I have heard learned counsel for the parties, besides
going through the record.
12. Permanent / perpetual injunction, dealt with by Section
38 of the Specific Relief Act, 1963, is a discretionary equitable relief,
which is to be granted by the Court, keeping in view all the facts and
circumstances, including conduct of the parties and no person can
claim this relief as a matter of right.
13. Here, in this case, the plaintiff in the plaint had taken up
a plea that he is in exclusive possession of the suit land in his
capacity as a co-sharer and defendants being head strong persons
were threatening to dispossess him there from. It is nowhere his case
that he that he alongwith defendants are co-sharers in the joint land.
Name of Jarnail Singh, father of defendants, who is none else, but a
real brother of plaintiff, is also reflected in the ownership column.
Names of various other persons are there in the ownership
column of Jamabandi for the year 2002-2003
Exhibit R-1. The total area of joint holding is shown to be 111 Kanals
19 Marlas, of which the suit land is just a part. It is not case of the
plaintiff that he is in exclusive possession of the suit land under an
arrangement consented to by the other co-sharers, as such he is
entitled to retain the possession till partition.
14. During the proceedings of appeal before learned
Additional District Judge, Gurdaspur, appellant Jagir Singh had filed
an application under Order 41 Rule 27 CPC, for permission to lead
additional evidence, which has been allowed, since it was not
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opposed by counsel for the respondent. Resultantly, counsel for the
appellant, tendered into evidence certified copy of sale deed dated
26.3.1996 as Exhibit A-1; copy of mutation No. 3302 as Exhibit A-2;
certified copy of sale deed dated 16.2.1993 as Exhibit A-3; copy of
mutation No. 3286 as Exhibit A-4; certified copy of sale deed dated
7.11.2001 as Exhibit A-5; copy of mutation No. 3551 as Exhibit A-6
and closed his evidence. Through sale deed Exhibit A-1, plaintiff
Karnail Singh is shown to have sold 46 Kanals 7 Marlas of his share
in the joint khata to vendees Suba Singh, Surinder Singh, Rulda
Singh, Gurdev Singh, Chanan Singh etc. for Rs.4,50,000/-, handing
over possession to them. That sale deed is dated 26.3.1996. Vide
sale deed Exhibit A-3, Karnail Singh is shown to have sold 0 Kanal
15 Marlas of land to Sadhu Singh etc. That sale deed is dated
16.2.1993 and in terms of sale deed Exhibit A-5 dated 7.11.2001, he
had sold of 6 Kanals of land to Surinder Singh, Rulda Singh etc. As
a result of these sale deeds, when plaintiff had sold his entire share
in the joint holding, he was not left with any right or title in the land
in question and he could not have possibly filed the suit for
permanent injunction in that respect later on, on the strength of
entries in the jamabandi.
15. It is to be kept in view that jamabandi is not a document
of title, rather it is record of rights, which is mainly prepared for
fiscal purposes to determine the amount of land revenue leviable on
parcels of land and fixing the liability to pay the same. On the other
hand, sale deed is a document of title. It is duty of the revenue
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authorities to update the revenue record and keep it in accordance
with the actual position at the spot. If for any reason any lapse takes
place in updating the record, then no person can take advantage of
that lapse. Here the plaintiff seems to be doing so. He without
uttering a single word with regard to the sale deeds executed by him,
had brought the suit for permanent injunction. Therefore, he is shown
to be guilty of concealment of material facts, which clearly dis-
entitles him to grant of perpetual injunction in view of Section 41 of
the Specific Relief Act, 1963, which provides that an injunction
cannot be granted when the conduct of the plaintiff or his agents has
been such as to dis-entitle him to the assistance of the court.
16. Although, the appellant - defendant had come up with a
claim that in an oral family partition done between father of the
appellant and respondents, the suit land had fallen to the share of
father of defendants, but even if no such family partition could be
proved, the plaintiff was required to prove his own case. That sale
deeds executed by him having been brought on record, the plaintiff
was not left with any right or interest in the suit land and he could not
possibly file a suit for grant of permanent injunction against the
respondents.
17. Both the courts by mis-appraisal of evidence and factual
position and wrong interpretation of law, had come to the conclusion
that plaintiff was in exclusive possession of the suit land and he was
entitled to grant of permanent injunction. Whereas plaintiff did not
deserve to be granted any such relief. The judgments and decrees
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passed by the courts below are not sustainable and are set aside.
Resultantly, the suit of the plaintiff is dismissed with costs,
throughout.
18. The appeal is, accordingly, allowed.
( H.S. Madaan )
th
December 9 , 2022 Judge
chugh
Whether speaking / reasoned Yes / No
Whether reportable Yes / No
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