Bhupinder Singh vs Anokh Singh & Ors
2023 Latest Caselaw 1511 P&H

RSA No.2430 of 2016 (O&M)                                           1

       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                  CHANDIGARH


Sr. No.201                                        RSA No.2430 of 2016 (O&M)

                                                  Date of Decision: 24.01.2023


Bhupinder Singh                                                    .... Appellant
                                         Versus

Anokh Singh and others                                           ... Respondents


CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA

Present:     Mr. Anil Kumar Garg, Advocate for the appellant.

             Mr. Sherry K.Singla, Advocate for respondent No.1.

             Mr. Vikas Chatrath, Advocate and
             Mr. Nitin Kaushal, Advocate for respondents No.2 to 4.
                   ***

TRIBHUVAN DAHIYA, J.

This is defendant's second appeal against the concurrent

findings of both the Courts below.

2. The facts of the case in brief are, respondent No.1/plaintiff

(hereinafter referred to as the 'plaintiff') filed a suit for mandatory injunction

seeking direction to the appellant/defendant (hereinafter referred to as the

'defendant') to remove electric motor connection No.KB/266 AP/OYT,

installed in khasra No.826/2 (4-0), owned and possessed by the plaintiff as

per jamabandi for the year 2007-08 situated in Village Kasba Bharal Tehsil

Malerkotla District Sangrur. The mandate was sought on the pleading that

originally Gurbachan Singh and Puran Singh, sons of Diwan Singh were

owners in possession of land measuring 4 kanal bearing khewat/khatoni

No.123/222 in khasra No.826/2 (4-0). On 12.06.1979, the plaintiff

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purchased above said land, vide sale deed dated 12.06.1979, with specific

khasra No.826/2 (4-0) and became owner in possession of the same. The

defendant was also having adjoining land on the eastern side, but he got the

electric motor in question installed in the aforesaid land owned and

possessed by the plaintiff, in connivance with other defendants/officials of

the Punjab State Power Corporation Limited.

3. The suit was contested by the defendant by pleading that

Gurbachan Singh and Puran Singh were owners in possession of 22 kanal

19 marla including the suit land. The plaintiff never came in possession of

the suit land, which was owned and possessed by Charanjeet Kaur,

defendant's mother. It was also averred that on 01.08.2005, she purchased

land measuring 4 kanal 8 marla from Puran Singh and legal representatives

of Gurbachan Singh out of the total khewat of land measuring 22 kanal

9 marla, which included share in khasra No.826/2 (4-0) as well. The electric

motor was installed in that khasra number since it was in possession of the

defendant's mother Charanjeet Kaur.

4. On the pleadings of the parties, the following issues were

settled by the trial Court:

1. Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP

2. Whether the plaint is not maintainable in the present form?OPD

3. Whether the plaintiff has no cause of action to file the present suit?OPD

4. Whether the plaintiff has concealed the material facts from the Court?OPD

5. Relief.

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5. While deciding Issue No.1, the trial Court recorded that in order

to substantiate his ownership and possession over the suit land, the plaintiff

has produced the sale deed No.818 dated 12.06.1979 (Ex.P2), which shows

the purchase of specific khewat khatoni No.195/182/304 bearing khasra

No.826/2 (4-0). Reliance has further been placed on other documents, like

jamabandi for the year 2007-08, which shows that the suit land was sold to

plaintiff by Gurbachan Singh and Puran Singh. In khasra girdawari, Ex.P8,

also plaintiff is shown to be in possession of the suit land. A reference has

also been made to written statement filed by the officials/defendants No.2 to

4 to the effect that the defendant applied for installation of the disputed

electric motor connection in khewat/khatoni No.197/326 khasra No.801

(8-0) and 802 (4-0), which is not the suit land where the electric motor, in

fact, has been installed. PW-3 Parmjeet Kaur, Clerk in PSEB has also

deposed that the application for installation of electric motor was with

respect to khasra No.801 (8-0) and 802 (4-0). Therefore, as per evidence on

record, the defendant did not even apply for installation of the electric motor

in the suit land belonging to the plaintiff. The plaintiff himself in his

testimony as PW-2 admitted that at the time of the installation of the electric

motor, no revenue officer was present at the spot. Besides, the defendant's

mother Charanjeet Kaur, who is claimed to be in possession of the suit land,

has not come into the witness box to prove her version. In the light of this

evidence, the trial Court held that the defendant failed to prove that his

mother was in possession of the suit land, where admittedly the electric

motor connection had been installed. On the contrary, the plaintiff's

possession over the suit land specifically khasra No.826/2 (4-0) stands

established on the basis of documentary as well as oral evidence, as

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mentioned above. Accordingly, the issue was decided in plaintiff's favour

holding him entitled to the mandatory injunction sought.

6. In view of the findings on Issue No.1, Issues No.2, 3 and 4 were

also decided against the defendant and in favour of the plaintiff. The suit was

decreed with costs vide judgment and decree dated 12.12.2013. These

findings were affirmed by the lower appellate Court in appeal, vide

judgment and decree dated 15.01.2016.

7. Learned counsel for the appellant/defendant contends that

partition of the suit land has not taken place and both the parties are

co-sharers in possession thereof. A co-sharer is taken to be in possession of

every inch of land. Resultantly, mandatory injunction cannot be issued

against the defendant, who is a co-sharer in the suit land. It was further

contended that the only remedy with the plaintiff was to file a suit for

partition. In support of his contentions, he has relied upon Full Bench

judgments of this Court in Ram Chander versus Bhim Singh and others

2008(3) R.C.R.(Civil) 685.

8. Per contra, learned counsel for the plaintiff/respondent has

supported the impugned judgments, which according to him have been

rightly decided as the plaintiff has been able to prove his possession and

ownership over the land in question.

9. Learned counsel for the parties have been heard and record

perused.

10. The findings of the Courts below, based upon documentary as

well as oral evidence on record, are that the plaintiff purchased specific

khasra No./suit land, vide sale deed dated 12.06.1979 (Ex.P2), in the joint

khewat. His possession and ownership of the same is recorded in the revenue

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record duly proved before the Court. Although the land belonging to the

parties has not been partitioned by metes and bounds, there is no denying the

fact that the plaintiff remains in possession of specific khasra no./suit land

which has been purchased by him vide sale deed dated 12.06.1979 (Ex.P2).

Not only that, the sale deed (Ex.D2), on the basis of which defendant

became co-sharer in the joint property, does not mention the suit land. Both,

the plaintiff as well as the defendant, being co-owners, are in possession of

separate parcels of land, which is established by the evidence on record. It is

not a case where the plaintiff has sought an injunction seeking ouster of the

defendant from the suit land or any specific portion/share thereof on which

he has been put in possession by his vendor. Instead, the mandatory

injunction has been sought and issued only to remedy the situation which

has arisen on account of installation of electric motor in specific portion of

land on which the plaintiff's possession and ownership stand established, as

concurrently recorded by both the Courts below. Therefore, the injunction

has rightly been issued.

11. The Full Bench judgment of this Court in Ram Chander case

(supra) would not help the defendant. The judgment holds that co-sharers in

exclusive possession of the joint land and his vendee, are entitled to continue

in possession and protect the same to the extent of their share till the joint

holding is partitioned, without asserting exclusive ownership to the portion

so transferred and possessed. In the instant case also, the plaintiff is only

seeking to protect possession over the suit land specifically transferred to

him pursuant to the sale deed dated 12.06.1979 (Ex.P2). It was the defendant

who transgressed into the area/parcel which was in exclusive possession of

the plaintiff, by installing the electric motor in question. Removal of such

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electric motor would not in any manner amount to ouster of the

co-owner/defendant.

12. In view of the aforesaid discussion, plaintiff is entitled to seek

mandatory injunction for removal of the electric motor in question installed

in the suit land specifically owned and possessed by him. There is no error

of law in the judgments of the Courts below in issuing/affirming the

mandatory injunction sought for by decreeing the plaintiff's suit. No

substantial question of law arises for consideration either.

13. Appeal stands dismissed.

14. Pending miscellaneous application(s), if any, stand disposed of

as having been rendered infructuous.

                                                  (TRIBHUVAN DAHIYA)
                                                       JUDGE

24.01.2023
Maninder

             Whether speaking/reasoned :        Yes
             Whether reportable        :        Yes




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