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2002 DIGILAW 765 (PNJ)

Ram Pal v. Zile Singh

2002-08-07

JAGDISH SINGH KHEHAR

body2002
Judgment J.S.Khehar, J. 1. The respondent-plaintiffs filed a suit praying for the issuance of a prohibitory injunction against the appellants-defendants. The object of the said suit was to restrain the appellants-defendants from effecting construction on the suit land and in case the appellants-defendants succeeded in effecting construction on the suit land, it was prayed (in the alternative) that the structure constructed by the appellants-defendants be demolished and the suit land be restored to its original position and character. Along with the aforesaid suit, the respondent-plaintiffs filed an application seeking interim directions. The aforesaid application was allowed inasmuch as the trial court directed the parties to maintain status quo in respect of the suit land. 2. In the suit filed by the respondent-plaintiffs, it was alleged that they had proprietary as well as possessory rights as co-owners to the extent of 2/16 share in the suit land measuring 15 Marias. The aforesaid claim was based on a sale deed (Exhibit P1) dated 27.10.1975, executed in their favour by Roshan Lal. On the basis of the mutation (Exhibit PB) sanctioned in their favour on 28.1.1976 as well as the entries made in the revenue records, they claim to be in joint possession of the suit land. It was alleged by the respondent-plaintiffs , that the appellants-defendants were bent upon making structural changes in the suit land by constructing a room on a portion of the suit land forcibly. 3. The appellants-defendants controverted the factual position stated above by asserting that neither the respondent-plaintiffs, nor their predecessors-in-interest had ever been in possession of the suit land. The appellants-defendants claimed that they have been in possession of the entire suit land since 1962 i.e. since the time the appellants-defendants purchased the suit land. They further claimed that they were in exclusive possession of the suit land upon which they had constructed their residence and had also installed their flour grinding machine. The appellants-defendants further claimed that they had perfected their title in respect of the suit land on account of their adverse possession since 1962, to which the respondent-plaintiffs never objected. They further claimed that they were in exclusive possession of the suit land upon which they had constructed their residence and had also installed their flour grinding machine. The appellants-defendants further claimed that they had perfected their title in respect of the suit land on account of their adverse possession since 1962, to which the respondent-plaintiffs never objected. The appellants-defendants also asserted that as per the averments made in the suit, the respondent-plaintiffs merely claimed joint ownership in respect of 2/16th of the suit land; and since it had not been alleged that the appellants-defendants were effecting construction over the suit land in excess of their share, the suit was clearly mis-conceived. It was, therefore, suggested that the respondent-plaintiffs should seek partition of the suit land on the basis of their alleged ownership rights. 4. The trial court, in its order dated 7.6.1979 arrived at the conclusion that the respondent-plaintiffs were joint owners of the suit land. The aforesaid conclusion was drawn on the basis of the sale deed dated 27.10.1975 (Exhibit P.1), after the said deed was found to be duly executed. The trial Court also arrived at the conclusion that the respondent-plaintiffs were in joint possession of the suit land. The conclusion was drawn by the trial Court on the basis of the mutation sanctioned on 28.1.1976 (Exhibit PB), Jamabandi for the year 3970-71 (Exhibit P.7), jamabandi for the year 1975-76 (Exhibit P.9) and Khasra-girdawaris for the period from Kharif 1976 to Rabi 1979 (Exhibit P.10). Despite the aforesaid conclusion drawn by the trial Court, it dismissed the suit filed by the respondent-plaintiffs. 5. Dissatisfied by the order passed by the trial Court, the respondent-plaintiffs preferred an appeal. It would be pertinent to mention that during the course of the appeal, counsel for the appellants-defendants did not contest the claim of the respondent-plaintiffs that they were joint owners and also in joint possession of the suit land to the extent of 2/16th share. For the aforesaid reasons, the lower appellate Court accepted the appeal, set aside the order of the trial Court and decreed the suit preferred by the respondent-plaintiffs. The Lower Appellate Court while decreeing the suit preferred by the respondent-plaintiffs directed the appellants-defendants to demolish the room built by them on the north-western corner of the suit land. 6. For the aforesaid reasons, the lower appellate Court accepted the appeal, set aside the order of the trial Court and decreed the suit preferred by the respondent-plaintiffs. The Lower Appellate Court while decreeing the suit preferred by the respondent-plaintiffs directed the appellants-defendants to demolish the room built by them on the north-western corner of the suit land. 6. Aggrieved by the order passed by the lower appellate Court, the appellants-defendants have approached this Court through the instant regular second appeal. In order to controvert the conclusions drawn by the lower appellate-Court learned counsel for the appellants-defendants has placed reliance on a decision rendered by a Division Bench of this Court in Sant Ram Nagina Ram v. Daya Ram Nagina Ram and Ors., A.I.R. 1961 Punjab 528. Pointed attention of this Court has been invited to the following observations made therein;- "If, in spite of protests by one co-owners, another co-owner raises a building on a portion of joint land, not exceeding his own share therein, the aggrieved co-owner cannot obtain a decree for demolition of that building without proving special damage or substantial injury to him unless the other co-owner who has raised the building has done so by asserting an exclusive title in himself and by denying that of the other co-owners". In this behalf, it is emphatically asserted by the learned counsel for the appellants-defendants that the appellants-defendants have not effected construction over the land beyond their share. Based on the observations of the Division Bench, it is asserted by the learned counsel for the appellants-defendants that the respondent-plaintiffs did not lead any evidence to establish that the construction effected by the appellants-defendants had prejudiced the respondent-plaintiffs in any manner. Having failed to lead gvidence in respect of damage or injury suffered by respondent-plaintiffs on account of the alleged construction effected by them on the land in question, it is asserted (on the basis of the conclusions drawn in the judgment cited above) that the lower appellate court erred in directing the demolition of the construction of one room effected by the appellants-defendants on the north-western corner of the land in question. 7. To controvert the aforesaid claim made by the learned counsel for the appellants-defendants, learned counsel for the respondent-plaintiffs asserted that the judgment relied upon by the learned counsel for the appellants-defendants is in fact contrary to the interest of the respondents-plaintiffs. 7. To controvert the aforesaid claim made by the learned counsel for the appellants-defendants, learned counsel for the respondent-plaintiffs asserted that the judgment relied upon by the learned counsel for the appellants-defendants is in fact contrary to the interest of the respondents-plaintiffs. Learned counsel for the respondents-plaintiffs has invited the attention of this Court to the following observations made by the Division Bench in the aforesaid case:- "As the entire case is before this Bench for decision, I am of the view that, as the defendants had openly denied co-ownership and had asserted their exclusive title on the false plea of previous partition and had continued to raise the structure despite the protestations of the plaintiff, and in disregard of the temporary injunction issued, the decree passed by the trial Court for demolition of the structure and restraining the defendants from making any structure thereon in future is manifestly just." The factual position in the case cited above is substantially similar to the factual position of the case in hand. Even in this case, it is evident from the facts narrated hereinabove that the trial Court had passed an interim order requiring the parties to maintain status quo. It is evident from the statements of the Process Server, Hari Singh (PW6), that despite the orders passed by the trial Court, construction work had remained in progress and that the appellants-defendants refused to accept service of the order from the Process Server, whereby the trial Court had directed the parties to maintain status quo. The appellants-defendants had also refused to allow the Local Commissioner to take measurements as is evident from the report and the statement of the Local Commissioner, G.L. Malik (PW5). In the aforesaid view of the matter, specially in view of the decision rendered by the Division Bench in Sant Ram Naginas case (supra), I find no infirmity in the order of the lower appellate Court. In the aforesaid view of the matter, specially in view of the decision rendered by the Division Bench in Sant Ram Naginas case (supra), I find no infirmity in the order of the lower appellate Court. 8 Learned counsel for the appellants-defendants also placed reliance on the decision rendered by a Division Bench of this Court in Bachan Singh v. Swaran Singh, (2000-3)126 P.L.R. 416, wherein while disposing of a revision petition, against an interim order passed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, this Court arrived at the conclusion, that a co-owner who is not in possession of any part of the property is not entitled to seek injunction against another co-owner in exclusive possession thereof. The aforesaid judgment, to my mind is clearly inapplicable to the facts of this case. Insofar as the instant case is concerned, the Courts below have recorded a concurrent finding of fact that the respondent-plaintiffs are in joint possession of the suit land. The assertion made on behalf of the appellants-defendants that they are in exclusive possession of the suit land has also not been accepted by the courts below. No evidence has been brought to my notice on the basis of which the finding of fact recording by the Courts below calls for any interference. In fact the conclusions drawn by the Courts below were supported by the mutation sanctioned in favour of the respondent-plaintiffs on 28.1.1976 after the execution of the sale deed dated 27.10.1975 wherein the respondent-plaintiffs were recorded to be in joint possession of the suit land. Besides the aforesaid, the Courts below relied upon various jamabandis and Khasra girdawaris (already noticed above) to arrive at the conclusion that the respondent-plaintiffs were in joint possession of the suit land. Moreover, it has been noticed in the order passed by the tower appellate Court that the appellants-defendants did not contest the claim of the respondent-plaintiffs that they were joint owners and in joint possession of the suit land to the extent of 2/16the share. In view of the aforesaid it is not possible for me to accept that the respondent-plaintiffs were not in joint possession of the suit land or that the appellants-defendants were in exclusive possession thereof. Thus, viewed, even the decision rendered by this Court in Bachan Singhs case (supra) cannot be of any help to the appellants-defendants. 9. In view of the aforesaid it is not possible for me to accept that the respondent-plaintiffs were not in joint possession of the suit land or that the appellants-defendants were in exclusive possession thereof. Thus, viewed, even the decision rendered by this Court in Bachan Singhs case (supra) cannot be of any help to the appellants-defendants. 9. Finding herself in the aforesaid predicament, learned counsel for the appellants-defendants made a determined effort to show that the reliance placed by the Courts below on the report of the Local Commissioner and his statement recorded as PW5 was misplaced. On a perusal of the statement of the Local Commissioner recorded as PW5, I find that the submission of the learned counsel for the appellants-defendants, is misplaced. Moreover, it would be pertinent to mention that in his statement Nahar Singh (PW3) asserted that he was present when the Process Server and the Local Commissioner visited the spot. He reiterated the fact that the appellants-defendants refused to accept notice which the Process Server tried to serve on them. Nahar Singh also asserted that the construction activity had continued during the pendency of the suit despite the interim order passed by the trial Court. Nahar Singh was not cross-examined on any of the aforesaid issues. It is, therefore, difficult to understand how the statement of the Local Government can be questioned in the background of the statement Nahar Singh (PW3). 10. For the reasons recorded above, I find no merit in the appeal. The same is accordingly dismissed. There shall be no order as to costs.