Punjab-Haryana High Court
Durga Prasad And Another vs Kishori Lal Deceased And Others on 20 November, 2023
Neutral Citation No:=2023:PHHC:147300
RSA-571-2020 2023:PHHC:147300
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
RSA-571-2020 (O&M)
Date of Decision: 20.11.2023
Durga Prasad and another
....Appellants
VERSUS
Kishori Lal (since deceased) through LRs and others
....Respondents
CORAM:- HON'BLE MR. JUSTICE KARAMJIT SINGH
Present : Mr. J.P.Sharma, Advocate,
for the appellants.
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KARAMJIT SINGH, J.
Present appeal has been filed by the appellants-plaintiffs
against the judgment passed by both the Courts below whereby concurrent
findings have been recorded against the appellants.
2. Brief facts of the case are that the appellants-plaintiffs filed suit
for permanent injunction against respondent No.1-Kishori Lal (since
deceased) through his LRs on the ground that the appellants-plaintiffs are
owners in possession of the suit property comprised in Khewat No.1635,
Khatauni No.2345 Khasra No.3135/1 Min South ad measuring 1 Bigha - 1
Biswa as per jamabandi for the year 1989-90 which had fallen to the share
of the appellants-plaintiffs as per family settlement dated 17.6.2002 and that
the respondents/LRs of Kishori Lal are having no right to dispossess the
appellants-plaintiffs from the suit property and to raise construction therein.
3. The suit was contested by the aforesaid respondents who filed
written statement wherein factum of family partition dated 17.6.2002 was
denied and it was pleaded that the suit property came to both the parties
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from Dulli Chand and that the contesting respondents/defendants are having
1/4th share and they are in occupation of the suit property to the extent of
their share. It was pleaded that the suit be dismissed. The
respondents/defendants also filed counter claim to restrain the appellants-
plaintiffs from interfering into their peaceful possession over the suit
property and further restraining them from obstructing the contesting
respondents/defendants from raising construction in the suit property.
4. On the pleadings of the parties, the following issues were
framed : -
1. Whether the plaintiff is entitled to the relief of injunction as
prayed for? OPP
2. Whether present suit is not maintainable? OPD
3. Whether the plaintiffs have no cause of action and locus
standi to file the present suit? OPD
4. Whether the plaintiff is estopped from filing the suit by their
act and conduct? OPD
5. Whether the plaintiff has concealed the true and material
facts from the court if so, to what effect? OPD
6. Whether the present suit is time barred? OPD
7. Whether contesting defendant is entitled to the relief as
claimed in the counter claim? OPD
8. Relief.
5. Counsel for the appellants-plaintiffs examined PW1- Rajender
Kumar Saini Draftsman, PW-3 Hari Ram Saini, Notary Public, PW-4 Ghisa
Ram and Durga Prasad plaintiff No.1 appeared in the witness box as PW2.
The appellants-plaintiffs also produced site plan Ex.PW1/A, affidavit of Net
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Ram PW3/A and sale deed dated 6.2.2002 Ex.PX executed by Kishori Lal
in favour of Ram Avtar for valuable consideration. The appellants-plaintiffs
also produced documents Mark DA, Mark DB, Mark DC, Mark PA, Mark
PB, Mark PC and Mark PD.
6. On the other hand, counsel for the contesting respondents
examined DW1-Mool Chand defendant No.1-A, DW2-Nand Kishore
Sharma Draftsman, DW3-Ram Kishan, DW4-Sanjay Yadav, Notary Public
and further produced documents i.e. site plan Ex.DW2/A, affidavit of
Kishori Lal Ex.DW4/A, jamabandi Ex.D1, Ex.D6 and Ex.D7, register
intekal Ex.D2 8-10, Khasra Girdawari Ex.D3, sale deed dated 8.7.2010
Ex.D5 and Mark DB, sale deed dated 30.11.2011 Ex.D4 and site plan
Ex.D11.
7. In rebuttal, counsel for the appellants-plaintiffs tendered sale
deed dated 6.2.2002 Ex.PX.
8. After hearing counsel for the parties, learned trial Court
decided issue No.1 against the appellants-plaintiffs while issue No.7 with
regard to counter claim was decided against the contesting
respondents/defendants and consequently, the suit filed by the appellants-
plaintiffs as well as counter claim filed by the respondents/defendants were
dismissed.
9. The appeal filed by the appellants/plaintiffs against the
judgment of the learned trial Court dated 23.8.2016 was also dismissed by
the Court of Additional District Judge, Narnaul vide judgment dated
12.9.2019.
10. Being aggrieved, the appellants-plaintiffs have filed the present
appeal.
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11. I have heard counsel for the appellants-plaintiffs.
12. Counsel for the appellants-plaintiffs, while assailing the
concurrent findings recorded by the learned trial Court as well as the first
appellate Court, inter alia contends that the appellants-plaintiffs came into
possession of the suit property measuring 1 Bigha - 1 Biswa on the basis of
oral family settlement dated 17.6.2002 and that the contesting respondents-
defendants have got no right to interfere into their peaceful possession over
the suit property. Counsel for the appellants-plaintiffs referred to statements
of PW1, PW2, PW3, PW4 and various documents placed and proved on
record by the appellants-plaintiffs, in order to prove the factum of aforesaid
oral family settlement dated 17.6.2002.
13. Counsel for the appellants-plaintiffs further contends that the
impugned judgments are not sustainable and deserves to be set aside.
14. I have considered the submissions made by the counsel for the
appellants-plaintiffs.
15. Admittedly, no original document was produced by the
appellants-plaintiffs in the learned trial Court in order to prove that the suit
property fell to the share of the appellants-plaintiffs in the family settlement
dated 17.6.2002. The document relied upon by the appellants-plaintiffs to
prove the factum of said family settlement is not having signatures of all the
family members including Kishori Lal as has been observed by the learned
trial Court. No jamabandi or revenue record was produced by the
appellants-plaintiffs to prove that the said alleged family settlement dated
17.6.2002 was ever reflected in the subsequent revenue record.
16. Learned first appellate Court observed that as per jamabandi for
the year 1989-90, Net Ram, Kishori Lal, Jai Dayal and Har Lal were shown
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as joint owner in possession of the suit property. There is no revenue record
to show that the suit property was ever partitioned as has been alleged by
the appellant-plaintiff.
17. In light of above, both the Courts below have rightly held that
the appellants-plaintiffs have failed to prove that the suit property fell to the
share of the appellants in the family partition dated 17.6.2002. Thus, it
stands proved that the parties are co-owners and thus, having interest in the
whole property as also in every parcel of it and possession of joint property
by one co-owner is to be considered as possession of all even if all but one
are actually out of possession as has been held by Division Bench of this
Court in Sant Ram Nagina Ram v. Daya Ram Nagina Ram AIR 1961
Punjab 528 and has been relied upon by the first appellate Court in right
perspective. This being the position, both the Courts below rightly held that
the appellants were not entitled to relief as claimed by them.
18. For the foregoing reasons, this Court does not see any reason to
disagree with the findings recorded by the learned trial Court as well as the
first appellate Court. No question of law muchless substantial question of
law arises for consideration by this Court in this regular second appeal.
Consequently, this appeal is hereby dismissed in limine being devoid of
merits.
( KARAMJIT SINGH )
JUDGE
November 20, 2023
Paritosh Kumar
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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