High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 8 8 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 110 RSA-2396-2019 (O&M) Date of decision: 04.02.2025 ...Appellant(s) ...Respondent(s) Kuldeep Kaur aur & Another Sarabjit Singh ingh & Others Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- ocate Mr. Ravish Bansal, Advocat ate Ms. Liza Bansal, Advocate for the appellants. NIDHI GUPTA, PTA, J. *** Present second appeal eal has been filed by the defendants No s No.2 and 3 against the concurren rrent judgments and decrees of the learned y ned Courts below whereby the suit filed by the plaintiffs/resp respondents No.1 and 2 herein ein, for permanent injunction restraining th g the defendants from interfering ring into the possession of the plaintiffs over over the suit property, has been d en decreed by both the Courts below. 2.
Legal Reasoning
The appellants/defendants ter ants No.2 and 3 shall hereinafter be referred to d to as the ‘appellants’; and the resp iffs respondents No.1 and 2/plaintiffs as the ‘plaintif intiffs’. 3. Brief facts of the prese he resent case as pleaded by the plaintiffs are are that plaintiffs and their neph - ephew Sandeep Singh being co- sharers, filed iled a Suit for Permanent Injunctio s nction restraining the defendants from interferin fering into the peaceful possession nd sion of the plaintiffs over the land SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) measuring 56 56 kanals 11 marlas, bearing khew Page 2 of 8 8 (cid:1) 59, khewat no. 48, khatauni no. 159, khasra no. 12 . 124/2min/8-17, 125/2/9-7, 126/2 0, 26/2/9-7, 127/16-0, 128min/13-0, situated in the the revenue estate of village Nanga as angal, Tehsil and Distt. Faridkot, as per jamaband andi for the year 2010-11; and fo nts d for restraining the defendants from disposse ossessing the plaintiffs from the la lly, e land mentioned above illegally, forcibly, witho ithout due course of law. It was p at as pleaded by the plaintiffs that Sandeep Singh ingh has gone abroad and plaintif of intiffs are cultivating the share of Sandeep Singh ingh and have filed present suit on so. t on behalf of Sandeep Singh also. It was averred rred that to deceive and defraud the gh, d the plaintiffs and Sandeep Singh, defendants in s inter-se had procured a sale d of le deed showing the delivery of possession of n of khasra no. 126/2/9-7, which wa w, was not in their possession. Now, defendants wa s want to encroach upon the suit la lso it land without any right and also want to interfe terfere into the peaceful possession ep ssion of the plaintiffs and Sandeep Singh over th r the suit land, for which they nd ey have no right. Plaintiffs and Sandeep Singh ingh are in exclusive possession of t ht of the suit land in their own right and being co co-sharers. It has been further are her averred that defendants are threatening th g the plaintiffs that they will dispo he ispossess them forcibly from the suit land and nd will interfere into their possessi ny session over suit land without any right. Earlier, i ier, in an attempt to interfere into t iffs to the possession of the plaintiffs over the suit l uit land, defendant no.2 Kuldeep Ka for p Kaur had filed an application for correction of of khasra girdawari alleging her ve her possession over the above referred 9 kan kanals 7 marlas of land, but sam ant same was dismissed by Assistant Collector 2nd 2nd Grade, Kotkapura after visiting t he ing the spot and after verifying the SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) possession of n of the plaintiffs. Plaintiffs reques Page 3 of 8 8 (cid:1) it quested the defendants to admit their claim, bu it. , but to no effect. Hence, the suit. 4. Upon notice, the appella ce pellants had put in appearance before the lea learned trial Court filing written s on en statement resisting the suit on numerous gro grounds inter alia contending th he g that the suit is barred by the principle of re f res judicata; suit against co-share ion harer does not lie as no injunction can be grante anted against the co-sharers; the p eir e plaintiffs are estopped by their own act and nd conduct from filing the presen for sent suit; and the suit is bad for non-joinder of er of necessary parties as all co-sha ed sharers have not been impleaded as party. Vario arious pleas were taken on the mer merits of the matter as well. 5. Defendant No.1 was proce he roceeded against ex parte by the learned trial rial Court as he failed to appear ce. ear in the Court despite service. Plaintiffs filed filed replication reiterating the the version nd in the plaint and controverting ting the averments made in the writ written statement. 6. On the basis of pleadings o es ngs of the parties, following issues were framed ed vide order dated 08.09.2015:- “1. Whether the plaintiff is entitl ent ntitled to the relief of permanent injunction, as prayed for? OPP 2. Whether the suit is barred by pr by principle of res-judicata? OPD 3. Whether plaintiffs are barred b uct red by their own act and conduct PD from filing the present suit?OPD fro 4. Whether suit is not maintainabl inable? OPD 5. Whether suit is bad for non es? non-joinder of necessary parties? OPD 6. Relief.” SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) 7. On the basis of pleading dings and oral & documentary Page 4 of 8 8 (cid:1) evidence addu adduced by the parties, the learne arned trial Court decided issue No.1 in favour our of the plaintiffs and against the t the defendants; issues No.2 & 4 against the de e defendants and in favour of the p he plaintiffs; and issues No.3 & 5 against the de e defendants being not pressed. Co Consequentially, the suit of the plaintiffs was as decreed by the learned trial Cou l Court with costs vide judgment and decree da e dated 19.02.2018. Against the sa e same, the appeal bearing Civil Appeal No.175 .175 of 03.04.2018 was filed by the the appellants/defendants No.2 and 3, which hich was dismissed by the learne arned Additional District Judge, Faridkot vide j ide judgment and decree dated 08. 08.08.2018. Hence, the present peal. second appeal 8. Learned counsel r for the appellants assails th the impugned jud judgments and decrees of the the learned Courts below by submitting tha that out of the total joint land ho holding of 256 kanal 16 marla, the plaintiffs h iffs have filed the civil suit only qua qua suit land measuring 56 kanal 11 marla. Adm dmittedly, the plaintiffs and the de e defendants are co-sharers. The suit land is thu s thus, part of 256 kanal 16 marla w rla which is a joint khata and no partition has t
Legal Reasoning
as taken place. It is contended tha that it is established position in law that no inj o injunction can be granted in favou vour of or against a co-sharer. 9. It is further submitted that that the suit of the plaintiffs was decreed on th n the ground that the plaintiffs we s were shown to be in exclusive possession of n of the land in dispute as per the the Jamabandi (Ex.P2). Learned counsel conte ontends that this approach of th f the learned Courts below is SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) incorrect and and perverse as in the Jamaband andi, in Khatoni No.159, three Page 5 of 8 8 (cid:1) persons are s re shown to be in possession i.e. i.e. the two plaintiffs and one Sandeep Singh ingh. It is submitted that though i gh it is the pleaded case of the plaintiffs that hat they were filing the suit on beha behalf of the said Sandeep Singh also, however, ever, they had miserably failed to pr o produce and prove any GPA to show that he i he is ad idem with the plaintiffs in t in the filing of the suit. 10. It is submitted even the J he Jamabandi (Ex.P2) does not show the plain plaintiffs to be in exclusive possessio ession of the suit land measuring 56 kanal 11 m 1 marla. It is submitted that Sande ndeep Singh is also shown to be in possession o ion of the land along with the plain laintiffs. Therefore, the finding of the learned Co d Courts below that the plaintiffs a ffs are in exclusive possession of the suit land, i nd, is contrary to the record. Moreo oreover, the Jamabandi (Ex.P2) is a rebuttable d le document. It is submitted that hat for the afore-stated reason, the learned C ed Courts below have committed tted grave illegality by granting injunction in in favour of the plaintiffs as they they are none else but the co- sharers of the f the appellants. It is reiterated th that it is settled law that no injunction can can be granted against a co-sharer a rer and in favour of a co-sharer. 11. Learned counsel for the he appellants further contends that the plain plaintiffs have even withheld the the Sale Deed vide which they purchased the the land from the other co-sharer. arer. It is submitted that had the plaintiffs prod produced the said Sale Deed it wou would have been the clear and best evidence nce to prove as to whether the pos possession of any specific parcel of land was ev s ever given to the plaintiffs by their their vendor or not. SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) 12. It is lastly argued that prev previously also a suit was filed by Page 6 of 8 8 (cid:1) the plaintiff re iff regarding the same land and aga against the same parties which was withdraw rawn on 21.5.2014. This fact has has been admitted by plaintiff No.2/ Paramje amjeet Singh/PW1 before the learn arned lower Appellate Court on 20.07.2017. . As such, the present suit w t was not maintainable. It is accordingly pr ly prayed that the present appeal be al be allowed and the impugned judgments and s and decrees of the learned Courts urts below be set aside. 13. 14. Heard. It is undisputed that the the total land holding is of 256 kanal 16 mar marla which is joint in nature i re in which the plaintiffs and defendants an s and appellants are co-sharers an s and in which no partition has taken place. ce. However, as per the evide vidence on record specifically Jamabandi (Ex i (Ex.P2), the exclusive possession ion of the plaintiffs was shown and proven ov n over suit land measuring 56 kana anal 11 marla. In order to prove their exclusiv usive possession over the suit p it property, the plaintiffs also produced copy copy of khasra girdawari from Saun auni 2013 to Harri 2014 (Ex.P3), copy of applic pplication for correction of girdaw dawari (Ex.P4) and order dated 29.01.2014 pa 4 passed by Assistant Collector (Ex r (Ex.P5). The plaintiff No.2 had himself steppe epped into the witness box as PW1 W1 and tendered into evidence the above sa e said documents to prove the e he exclusive possession of the plaintiff over ver the suit property along with ith said Sandeep Singh. As the exclusive poss possession of the plaintiffs over the r the suit property stood proven SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) Page 7 of 8 8 (cid:1) on record, it , it has been rightly held that the the appellants have no right to disturb their p eir possession. 15. It is further my considered ered view that a most just and reasonable or e order has been passed by the le he learned Courts below. It has been correctl rectly observed that the defenda ndants are at liberty to seek partition of t of the property by filing appropri opriate proceedings as follows: “....plaintiffs ar ffs are entitled to protect their posse ossession over the suit property, but this will will be subject to right of the pa e partition by the defendants. Defendants ha ts have the remedy to file applic pplication for partition before revenue autho uthorities. This court is of the view th w that defendants have no right to interfere i re into the possession of the p e plaintiffs and further from dispossessing t ing the plaintiff from the suit prope roperty. This court is of the view that this judgm udgment shall have no effect on the n the rights of the parties during the partition p ion proceedings before revenue auth authorities, if any of the parties apply for partit artition proceedings...”. 16. As regards the plea of the the appellants that the present suit was barre arred by principle of res judicata, I a, I find no merit in the same as admittedly th y the previous suit filed by the the plaintiffs was dismissed as withdrawn vid vide order dated 21.05.2014. As . As such, the previous suit was not decided on d on merits; and is therefore not ba barred by res judicata. 17. It has also been argued ed by the appellants that the plaintiffs had had failed to produce the sale dee deed vide which they acquired title over the the suit property, to identify wheth hether a particular part was sold SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) to them by t by their vendor. However, the sai said argument is liable to be Page 8 of 8 8 (cid:1) rejected as it it is contended that from the Sa Sale Deed it would be evident that the plain laintiffs had purchased 1760/4355 355 share out of 256 kanal 11 marla. 18. Moreover, before parting, ing, it may be pointed out that the present ap t appeal is of the year 2019 and no d notice has not yet been issued in the same a e as it has been adjourned either her at request of or due to non- appearance o e of learned counsel for the he appellants on 10.05.2022, 19.09.2023, 16 3, 16.11.2023, 15.04.2024, 22.05.20 5.2024 and 05.08.2024. 19. As such, for the afore-state stated reasons I find no ground is made out to to interfere in the well-reasoned ed judgments of the ld. Courts below. The pre present appeal is dismissed. 20. Pending application(s) if an
Decision
if any also stand(s) disposed of. 04.02.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1)