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2001 DIGILAW 114 (HP)

DURGA SINGH v. NAND LAL

2001-06-21

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J.—This second appeal arises out of the judgment and decree of learned District Judge, Kinnaur Civil Division at Rampur Bushahr, dated June 9, 2000. 2. The facts necessary for the disposal of this appeal may be noticed: 3. It appears the land, subject matter of dispute, was owned and possessed by one Gopi Chand, who died on March 24, 1979, Gopi Chand, during his life time, gifted this land to his sister Smt. Girja Pati by a registered gift deed dated December 15, 1978. This land was ancestral property of Gopi Chand qua his sons. After the death of Gopi Chand, his sister Smt. Girja Pati wanted the possession of this land which was resisted by defendant No. 1 Nand Lal and Smt. Uma Pati, mother of defendants No. 2 and 3. Smt. Girja Pati then filed a suit for possession of this land in the court of learned Senior Sub Judge, Kinnaur in terms of Civil Suit No. 28-1 of 1979. The suit was resisted and ultimately dismissed on January 17, 1981. Copy of the judgment is on record as Ex. DX. The aforesaid suit was dismissed on the ground that the property in the suit was ancestral in nature qua defendant No. 1 and his brothers and, therefore, the gift deed of the land in favour of his sister was illegal. Smt. Girja Pati expired somewhere in the year 1981. 4. Gopi Chand on his death left behind four sons, namely, plaintiff Nand Lal, Durga Singh defendant No. 1, Brij Lal and Vidya Singh proforma defendants and also defendants No. 2 and 3 sons of his pre deceased son Hira Lal. Thus, plaintiff, defendant No. 1 and proforma defendants 4 and 5 had 4/5 share i.e. 1/5 share each whereas defendants 2 and 3 were owner in possession to the extent of 1/5 share. 5. Case of the plaintiff, as disclosed in the plaint, was that in the year 1995 defendant Nos. 1 to 3 raised a double storied construction on some portion of the suit land. Again, in the year 1997 contesting defendants started raising construction of another building on the part of the suit land. It was pleaded that defendants No. 1 to 3 being co-sharers of the suit land were not entitled to usurp the valuable part of the suit land or more share than what they were entitled to. Again, in the year 1997 contesting defendants started raising construction of another building on the part of the suit land. It was pleaded that defendants No. 1 to 3 being co-sharers of the suit land were not entitled to usurp the valuable part of the suit land or more share than what they were entitled to. Construction, it was pleaded, was raised and is being raised without obtaining consent of the plaintiff and proforma defendants. It is in this background plaintiff prayed for an injunction restraining defendants No. 1 to 3 from raising any construction on the land, subject matter of dispute, and for mandatory injunction for demolition/removal of the structure under construction and in the alternative for joint possession of the suit land. It was also the case of the plaintiff that there was a private partition between the parties in the year 1990 but the land subject matter of dispute was not included in the partition as the same was subject of litigation at that time. 6. Defendants-appellants resisted the suit on several grounds. Their case was that they have become owners of the suit land by adverse possession and the houses were constructed much before the filing of the suit. Therefore, the plaintiffs are not entitled to any relief including that of mandatory injunction. 7. The learned Trial Court settled several issues including whether the plaintiffs were entitled to mandatory injunction of demolition of the structure raised by the appellants over the suit land and also whether the appellants were in adverse possession of this land. The plea of the plaintiffs for demolition of the structure raised by the defendants was negatived. The plea of the contesting defendants that they are in adverse possession of the suit land was rejected. Suit was partly decreed. The plaintiffs were held to be entitled to joint possession of the suit land. 8. Both the learned trial Court and the learned first Appellate Court noticed that the evidence on record does not prove ouster of the plaintiff or proforma defendants. The learned first Appellate Court noticed: "In the books of the Collector, both the parties had been recorded joint owners in possession of the suit land in Jamabandi for the year 1992-93, Copy Ex. PW-l/D of the suit land. The entries of Jamabandi for the year 1992-93 had been repeated in Khasra Girdwari Ex. The learned first Appellate Court noticed: "In the books of the Collector, both the parties had been recorded joint owners in possession of the suit land in Jamabandi for the year 1992-93, Copy Ex. PW-l/D of the suit land. The entries of Jamabandi for the year 1992-93 had been repeated in Khasra Girdwari Ex. PW-l/C for the period from 4.6.1994 to 7.3.1998. There was a presumption of truth attached to the entries of Jamabandi. The defendants No. 1 to 3 had been co-owners in possession of the suit land. At one stage the Defendant Nos. 1 to 3 had denied the right, title or interest of the plaintiff in the suit land." 9. It is well settled that possession of one co-owner is on behalf of all the co-owners even if he is in exclusive possession. Exclusive possession of a co-owner cannot be said to be termed as adverse possession unless complete ouster is pleaded and proved. Both the trial Court and the learned first appellate Court, after appreciating the evidence on record, concurrently concluded that defendants No. 1 to 3 have not been able to prove ouster of other co-sharers including the plaintiff. 10. The impugned judgment and decree does not suffer from any illegality or perversity. 11. No other point is urged before me. 12. No question of law much less substantial question of law arises in this appeal. Appeal is dismissed. No costs. Appeal dismissed. -