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2000 DIGILAW 811 (PNJ)

Jagir Singh v. Harbans Singh

2000-07-28

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is a civil revision and has been directed against the order dated 14.10.1999 passed by Additional District Judge, Jalandhar, who reversed the order dated 27.8.1999 passed by Civil Judge (Junior Division), Jalandhar, who dismissed the application of the plaintiff under Order 39 Rules 1 and 2 C.P.C. by making the observation that if any construction is raised by the defendants, the same shall be at their own risk and expenses, which shall be subject to partition of the land between the co-sharers by metes and bounds. 2. The brief facts of the case are that plaintiff-respondent filed a suit for injunction against the defendants praying that defendants be restrained from raising any type of construction over the land measuring 2 Kanals 12 marlas comprised in Khewat No. 64, khatauni No. 97 and Khasra No. 7//23/3 (2K-12M) situated in village Sangal Sohal as per jamabandi for the year 1996-97 and taking the possession from him illegally, forcibly except effecting partition in due course of law. Along with the suit the plaintiff filed an application under Order 39 Rules 1 and 2 C.P.C. praying that during the pendency of the suit the defendants be restrained from raising any construction over the suit land. 3. The suit as well as the application was contested by the defendants alleging that they are also co-sharers in the suit property and are in exclusive possession of the area measuring 2 kanals 12 marlas. Since the plaintiff has enjoyed the possession of the land by raising construction, therefore, he cannot ask the defendants not to raise the construction as they are co-sharers and in the capacity of co-sharers they can enjoy the possession. 4. The parties placed documents before the trial Court and the learned Civil Judge (Junior Division), Jalandhar vide order dated 27.8.1999 dismissed the application of the plaintiff by holding that parties to the suit are co- sharers and the defendants can utilize the area which is in their exclusive possession by raising the construction which shall be subject to partition. 5. Aggrieved by the order of the trial Court, the plaintiff filed the appeal before the Court of Additional District Judge, Jalandhar, who allowed the appeal vide order dated 14.10.1999 for the following reasons as given in paras No. 10 and 11 of the order dated 14.10.1999 :- "10. The land is dispute bears Khasra No. 7//23/3. 5. Aggrieved by the order of the trial Court, the plaintiff filed the appeal before the Court of Additional District Judge, Jalandhar, who allowed the appeal vide order dated 14.10.1999 for the following reasons as given in paras No. 10 and 11 of the order dated 14.10.1999 :- "10. The land is dispute bears Khasra No. 7//23/3. Copy of jamabandi shows that this khasra number alongwith other khasra number is owned by various owners and is still joint. Since in the revenue record, the property in dispute is joint it cannot be held that the same has been partitioned as alleged by the defendants. From the Jamabandi and Khasra Girdawari it is clear that Khasra No. 7//23/3 is in possession of the plaintiff. Names of defendants do not find mention in the column of possession. No doubt, plaintiff and his brother sold 5 kanals 9 marlas of land to Harbhajan Singh but it is own case of the defendants that the plaintiff is owner of 7 kanals which he had purchased from Shangara Singh. Therefore, he is still owner of 1 kanal 11 marlas. Furthermore, the father of the plaintiff was also co-sharer in the entire Khewat and after his death he is also entitled to succeed to his share. It is, therefore, clear that the plaintiff is in possession of the Khasra number in dispute and is co-sharer in the property in dispute. Since the plaintiff is prima facie proved to be in possession as co-sharer in the property in dispute, the defendants are not entitled to raise construction. The learned trial Court has simply declined the injunction on the ground that plaintiff sold land to Harbhajan Singh who was has constructed Kothi and not the plaintiffs. It, therefore, cannot be said that the plaintiff has raised construction as observed by the learned trial Court. It is settled law that a co-owner cannot raise construction without getting the land partitioned. In this view of the matter, I am of the opinion that the learned trial Court has committed illegality in declining the injunction and the impugned order is, therefore, liable to be set aside. 11. In view of the above discussion, I am of the opinion that the appeal succeeds and the same is accepted. In this view of the matter, I am of the opinion that the learned trial Court has committed illegality in declining the injunction and the impugned order is, therefore, liable to be set aside. 11. In view of the above discussion, I am of the opinion that the appeal succeeds and the same is accepted. The impugned order is set aside and the application under Order 39 Rules 1 and 2 C.P.C. is allowed and the defendants are restrained from raising construction on the property in dispute till the disposal of the suit. Parties are directed to bear their own costs and are directed to appear before the trial Court on 25.10.1999. The file be consigned to the records and the lower Court record be sent back." 6. In this manner the present revision. 7. I have heard Mr. Ishwar Lal, Advocate on behalf of the petitioners, Mr. Vijay Rana, Advocate on behalf of the respondent and with their assistance have gone through the records of the case. 8. As I have stated above that the dispute is with regard to Khasra No. 23/3 of Rect. No. 7. During the course of arguments I have seen the latest jamabandi for the year 1996-97 which shows that this Khasra number has 52 units out of which Shangara Singh has only 5 units and the rest of the units are being cultivated by all the co-sharers. It further transpires that the parties to the suit have several joint Khatas. What are the rights of the co-sharers, has been laid down in the Full Bench decision of this Court in Bhartu v. Ram Sarup, 1981 P.L.J. 204. Though it was the argument raised by the learned counsel for the respondent that petitioners are not in possession of any part of Khasra No. 23/3 of Rect. No. 7, but this argument is not acceptable to this Court. As per jamabandi for the year 1996-97 this Khasra number is not in exclusive possession of the respondent. Rather the status of the parties has been recorded as co-sharers. I have further seen the site plan which was shown to me by the learned counsel for the petitioners, which shows that Khasra No. 23/2 is in possession of the petitioners. On some other Khasra numbers the plaintiff-respondent has constructed his house. Rather the status of the parties has been recorded as co-sharers. I have further seen the site plan which was shown to me by the learned counsel for the petitioners, which shows that Khasra No. 23/2 is in possession of the petitioners. On some other Khasra numbers the plaintiff-respondent has constructed his house. In the Full Bench judgment it has been observed that a co-owner has interest in the whole property and also in every parcel of it and 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. As it is prima facie on the record that the petitioners are in exclusive possession of Khasra No. 23/2, in these circumstances, they can certainly enjoy the property till this khasra number is partitioned by metes and bounds. Even otherwise the equity lies in favour of the petitioners as the respondent has already constructed a bungalow on other Khasra numbers which is in his exclusive possession. A person who seeks equity must do equity. This is the basic principle of law. 9. In these circumstances, the first Appellate Court has committed a patent illegality while allowing the application under Order 39 Rules 1 and 2 C.P.C. Hence I allow this revision, set aside the impugned order passed by the first Appellate Court and restore the order passed by the trial Court. 10. Nothing stated above shall amount an expression of my opinion on the merits of the case. 11. Parties are directed to appear before the learned trial Court on 11.8.2000. Revision allowed.