Bhim Singh & Anr. v. Harbans Singh & Anr.

Mr. Rai Singh Chauhan, Advocate for the appellants. Rakesh Kumar Garg, J. CM No.5936-C of 2009 Application is allowed subject to all just exceptions. CM No.5937-C of 2009 For the reasons mentioned in the application, delay of 58 days in refiling this appeal is condoned. CM stands disposed of. CM No.5937-C of 2009 For the reasons mentioned in the application, delay of 109 days infiling this appeal is condoned. CM stands disposed of. RSA No.2010 of 2009 (O&M) This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby their suit for permanent injunction restraining the defendant-respondents from raising any construction or changing the nature of the suit property and further restraining respondent No.1 from alienating specific khasra numbers and more than share in the RSA No.2010 of 2009 (O&M) 2 land in dispute was dismissed. As per the averments made in the plaint, the appellants and respondent No.1 were co-sharers in the suit land and the Khata was joint and no partition had taken place.

It was further averred that defendant No.1 was not in exclusive possession of any part of the suit land. Defendant No.2 was neither a co-sharer nor he had any concern whatsoever with the suit land. However, defendant No.1 was bent upon to transfer the specific khasra numbers and more than his share and further the defendants were bent upon to change the nature of the suit property by raising construction illegally for which they had no right to do so. Thus, the necessity arose to file the present suit. Upon notice, defendants appeared and contested the suit by filing common written statement raising various preliminary objections. On merits, it was admitted that the plaintiffs and defendants were co-sharers in the suit land, however, the suit land was partitioned by way of oral partition for the last so many years and the Khata was not joint. The defendant was in exclusive possession of the specific portion of the suit property mark- AEF and the plaintiffs were in joint possession of the portion Mark EBCDF as shown in the site plan attached.

It was further averred that the parties were in possession of specific portion at the spot. The plaintiffs had no right to interfere in the possession of the defendants. The defendants never gave a threat to the plaintiffs as alleged. However, the defendants were entitled to use the portion of the suit land in their possession in any manner they like. Rests of the averments were denied and it was prayed that the suit be dismissed. The parties led oral as well as documentary evidence in support of their respective claims. After hearing learned counsel for the parties, the trial Court RSA No.2010 of 2009 (O&M) 3 dismissed the suit holding that the suit land was partitioned amongst the co-sharers by way of family partition and the plaintiffs and defendant No.1 were in separate possession of the land which came to their share. Feeling aggrieved with the impugned judgment and decree passed by the trial Court, the appellants challenged the same by filing an appeal which was also dismissed by the Lower Appellate Court vide impugned judgment and decree dated 13.8.2008.

Still not satisfied, the plaintiffs have filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently argued that the Courts below have failed to appreciate the material evidence available on record and thus, the findings recorded by the Courts below, which were contrary to the evidence on record, cannot be sustained. According to the learned counsel for the appellant, there was enough documentary evidence on record in the shape of revenue entries which showed the joint possession of all the co-sharers over the suit land. However, the aforesaid material evidence has not been taken into consideration by the Courts below. Moreover, no partition amongst the co- sharers of the suit land had ever taken place through any court of law or otherwise and the defendants were also not in possession of any specific portion of the suit land exclusively.

The Courts below have rejected the pleas raised by the appellants in a mechanical manner and thus, according to the learned counsel for the appellant, the following substantial questions of law arises in this appeal:

(i) Whether the impugned judgment and decrees having been rendered without delaing with the most material issue with regard to status of suit land being partitioned or not, can be sustained in the eyes of law? RSA No.2010 of 2009 (O&M) 4 (ii) Whether the respondents have any right to sell or change the nature of the joint land without any partition? (iii) Whether the impugned judgments and decrees can be sustained in the eyes of law?

I have heard learned counsel for the appellants and perused the impugned judgment and decrees. Admittedly, parties to the suit are co-sharers. It is well settled that a co-sharer can sell his share out of the joint land. Further, it is well settled that even if one sells the specific khasra numbers, the same tantamount to sale of shares and not of sale of specific khasra numbers.

According to the learned counsel for the appellant, the parties are joint in possession and respondent No.1 is bent upon to alienate a specific portion of the suit which is not permissible under the law. It has been further pleaded that the alleged oral partition which has not been given effect to is of no consequence. Moreover, the evidence has come on record according to which the plaintiffs have also mortgaged specific khasra numbers with the Bank in order to raise loan for themselves. When the appellants have alienated the specific portion out of the suit land they are estopped from saying that defendant No.1 be restrained from alienating his own share. Moreover, there is no evidence on record to show that the defendants are alienating better and more valuable piece of land out of the joint Khata. Although the oral partition has not been given effect in the revenue record but that is of no consequence as the appellants have themselves admitted the factum of oral partition and cultivation of separate shares by them.

They have also admitted having made construction over the property falling into their share. The Courts below on appreciation of evidence have recorded a finding of fact that partition of the joint Khata pertaining to the suit land has already been effected and the plaintiff- RSA No.2010 of 2009 (O&M) 5 appellants were in exclusive possession of their share which had fallen to them and defendant No.1 was in exclusive possession of his share out of the suit land. There is no material evidence on record on the basis of which the findings of the Courts below could be challenged. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. March 5, 2010 (RAKESH KUMAR GARG) JUDGE