Punjab-Haryana High Court
Sharanjit Singh vs Davinder Singh And Others on 23 January, 2024
Author: Alka Sarin
Bench: Alka Sarin
2024:PHHC:008378
RSA-4976-2019 (O&M) 1
118
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-4976-2019 (O&M)
Reserved on : 18.01.2024
Date of decision : 23.01.2024
Sharanjit Singh ... Appellant(s)
Versus
Davinder Singh and Others ... Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Vikas Gupta, Advocate for the appellant.
ALKA SARIN, J.
1. The present regular second appeal has been preferred by the
plaintiff-appellant against the concurrent findings returned by the Trial Court
as well as the First Appellate Court whereby his suit for permanent
injunction has been dismissed.
2. Brief facts relevant to the present lis are that the plaintiff-
appellant filed a suit for permanent injunction for restraining the defendant-
respondents from interfering in his peaceful possession and from
dispossessing the plaintiff-appellant from land measuring 1 kanal 19 marlas
in Khasra No.17/11/2 (1-13 min lehnda) and 18/15/3 (0-6) as entered in the
jamabandi for the year 2006-07 situated at village Shehbazpur, Tehsil and
District Tarn Taran. The plaintiff-appellant approached the Court stating that
integrity of this order/judgment.
2024:PHHC:008378
he had purchased 2 kanals 1 marla of land from Gian Singh vide a registered
sale deed dated 02.08.2010 and was in possession thereof. It was averred
that the Khasra Girdawari pertaining to the said land is also claimed to have
been recorded in the name of the plaintiff-appellant vide order dated
20.5.2011 passed by the Court of Assistant Collector IInd Grade. However,
the defendants Nos.1 and 2 without having any right in either of the said
khasra numbers filed a suit for permanent injunction in which the said
defendants in connivance with defendant No.3 procured the order of status
from the Court of Civil Judge Senior Division at Amritsar on 10.09.2011 in
which suit the application of the plaintiff-appellant for being impleaded as a
party was dismissed. Thus, in order to protect his possession by way of an
independent suit, the plaintiff-appellant sought the relief of permanent
injunction to restrain the defendant-respondents from causing any
interference in his peaceful possession in respect of the suit land. The
defendant-respondents in their written statement raised preliminary
objections about maintainability of suit and locus standi. On merits it was
contended that originally one Gurmit Kaur and her son Khazan Singh were
the co- sharers in the joint Khata of land measuring 122 Kanal 4 Marlas and
Gian Singh was a stranger to the said joint Khata and he was not in
possession of any part of the said joint Khata but was introduced as a co-
sharer for the first time on the basis of sale deed dated 26.9.2008 in respect
of land measuring 41/2454th share coming to 2 Kanal 1 Marla which was in
possession of defendant No.2 being mortgagee and therefore the defendant
No.3 could not have alienated any specific khasra number. It was further
stated that they had filed a suit for permanent injunction in respect of the
integrity of this order/judgment.
2024:PHHC:008378
land measuring 5 Kanal 19 Marlas bearing Khasra No.17/11/2 (5-11) and
18/15/3 (0-8) against Gian Singh and Gurmeet Singh from whom the
plaintiff-appellant claims to have got the possession of the suit land and the
said suit was decreed on 15.02.2012. The defendant-respondents claimed
themselves to being in possession over the suit land prior to the filing of the
present suit and their title and possession had been upheld vide judgement
and decree dated 15.02.2012. Replication was filed and the following issues
were framed :
1. Whether the plaintiff is entitled to the relief of
Permanent injunction as prayed for? OPP
2. Whether the suit is not maintainable ? OPD
3. Whether the plaintiff has no locus standi to file the
present suit ? OPD
4. Whether the plaintiff is estopped by his own act
and conduct from filing the present suit ? OPD
5. Relief.
3. The Trial Court, on the basis of the pleadings of the parties and
the evidence led, dismissed the suit vide judgment and decree dated
21.08.2015. Aggrieved by the same, an appeal was preferred which appeal
was also dismissed by the First Appellate Court vide judgment and decree
dated 09.07.2019. Hence, the present regular second appeal.
4. Learned counsel for the plaintiff-appellant would contend that
the plaintiff-appellant is the owner of the suit property by way of sale deed
dated 02.08.2010 and that the defendant-respondents are interfering in his
possession and hence the suit ought to have been decreed.
integrity of this order/judgment.
2024:PHHC:008378
5. I have heard the learned counsel for the plaintiff-appellant.
6. In the present case, admittedly, the land is in joint khata and has
not been partitioned. Both the Courts have concurrently returned a finding
that the sale in favour of the plaintiff-appellant was a share of 41/2454th of
the total land measuring 122 kanals 14 marlas. The defendant-respondents
are admittedly co-sharers. The learned counsel for the plaintiff-appellant has
not been able to show as to how the present suit would be maintainable
against co-sharers. A Full Bench of this Court in the case of Bhartu Vs.
Ram Sarup [1981 PLJ 204] has held that possession of joint property by
one co-owner is in the eye of law, possession of all even if all but one are
actually out of possession. A Division Bench of this Court in the case of
Bachan Singh V/s Swaran Singh [2000(3) RCR (Civil) 70] has held as
under:-
"15. On a consideration of the judicial pronouncements
on the subject, we are of the opinion that :
(i) a co-owner who is not in possession of any part of the
property is not entitled to seek an injunction against
another co-owner who has been in exclusive possession
of the common property unless any act of the person in
possession of the property amounts to ouster, prejudicial
or adverse to the interest of co-owner out of possession.
(ii) Mere making of construction or improvement of, in,
the common property does not amount to ouster.
(iii) If by the act of the co-owner in possession the value
or utility of the property is diminished,
then a co-owner out of possession can certainly seek an
injunction to prevent the diminution of the value and
utility of the property.
(iv) If the acts of the co-owner in possession are
integrity of this order/judgment.
2024:PHHC:008378
detrimental to the interest of other co-owners, a co-
owner out of possession can seek an injunction to prevent
such act which is detrimental to his interest.
In all other cases, the remedy of the co-owner out of
possession of the property is to seek partition, but not an
injunction restraining the co-owner in possession from
doing any act in exercise of his right to every inch of it
which he is doing as a co-owner."
7. Learned counsel for the plaintiff-appellant has not been able to
convince this Court as to how the present suit for injunction would be
maintainable when the plaintiff-appellant has a remedy to seek partition.
8. In view of the above, I do not find any illegality or infirmity in
the judgments and decrees passed by both the Courts. No question of law,
much less any substantial question of law, arises for determination in the
present case. The present regular second appeal which is wholly devoid of
any merit is accordingly dismissed. Pending applications, if any, also stand
disposed off.
23.01.2024 ( ALKA SARIN )
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment.
