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2005 DIGILAW 192 (PNJ)

Budh Ram v. Nihal Singh

2005-02-03

ADARSH KUMAR GOEL

body2005
Judgment Adrash Kumar Goel, J. 1. The appellants field a suit for injunction alleging that they were proprietors with their proportionate rights in Thok Jassu of Rohtak Revenue Estate. Defendant No. 1 also had a share in the common land but he had no right to alienate the same since he had already alienated more than his share in the common land. Injunction was also sought against construction over the said land. 2. Defendant No. 1 respondent contested the suit, claiming exclusive possession with right of alienation. Defendant Nos. 3 to 6 also contested the suit claiming to be in possession of 360 square yards, on the basis of sale deed executed by defendant No. 1. They submitted that land was not common land and defendant No. 1 had a right to alienate the same. Defendant Nos. 8 to 9 also contested the suit and defended purchase made by them from defendant No. 1. 3. The trial Court decreed the suit and restrained defendant No. 1 from alienating the suit property and restrained other defendants from constructing over the suit property till partition. It was held that as per revenue record i.e. Hasad Istemal Malkan Taksim Ex. P4, the suit property was common land. Version given by DW-1 Nihal Singh that suit land had been partitioned and he got the same as his share, was rejected. 4. On appeal, finding of the trial Court was reversed. It was held that defendant No. 1 was co-sharer in exclusive possession and had a right to alienate subject to adjustment at the time of partition. Possession of defendant No. 1 was for more than 54 years as shown by revenue record comprising of Jamabandi for the year 1930-31 Ex.D.17 which was repeated in Jamabandi for the year 1934 Ex.D.18, 1938-39, Ex.D.19, 1942-43 Ex.D.20, 1946-47, Ex.D.21 and 1962-63 Ex.P.9 and thereafter in Jamabandi for the year 1972-73 Ex.P.7, the family of the plaintiffs was, thus, to seek partition. The plaintiffs had indulged in various transactions and therefore, they could not restrain alienation by the defendant. 5. Learned counsel for the appellants submitted that suit land being joint, defendant No. 1 could not transfer the same so as to affect rights of the joint owners at the time of partition. Mere long possession of defendant No. 1 was not enough to deprive the plaintiffs of their rights in joint property. 5. Learned counsel for the appellants submitted that suit land being joint, defendant No. 1 could not transfer the same so as to affect rights of the joint owners at the time of partition. Mere long possession of defendant No. 1 was not enough to deprive the plaintiffs of their rights in joint property. He also submitted that if constructions are made on the suit property, the plaintiffs will be prejudiced. 6. Learned counsel for the respondent defendant No. 1 submitted that plaintiffs themselves had sold more than their share and they were not affected by partition. He referred to certified copies of sale deeds Exhibits D.1 to D.12 and D.15. 7. Learned counsel for the appellants submitted that mere tendering of certified copies of sale deeds, was not enough to prove sale transactions in absence of primary evidence of original sale deeds or permission to lead secondary evidence in the form of certified copies of sale deeds. 8. I have considered the rival submissions and perused the record. 9. Long possession of defendant No. 1 -respondent herein, has not been disputed, on behalf of the appellants, though, it is argued that long possession by itself was not enough to deprive the plaintiffs of their rights in joint property, as held in Annasaheb Bapusaheb Patil and Ors. v. Balwant alias Babusaheb Patil (Dead) by LRs and heirs etc., A.I.R. 1995 S.C. 895 (Paras 12, 13), Karbala Begum v. Mohd. Sayeed and Anr., A.I.R. 1981 S.C. 77 (Para 7), Bhartu v. Ram Sarup, 1981 P.L.J. 204 and Suba Singh v. Mohinder Singh and Ors., (1983)85 P.L.R. 613. Long possession may not be enough for ouster or adverse possession but can be taken into account to decide, objection of a joint owner in established possession, in a suit seeking injunction against such person. Remedy against co-owner in possession for long period is not an injunction but partition, as held in Bachan Singh v. Swaran Singh, (2000-3)126 P.L.R. 416. 10. Contention on behalf of the appellants that sale deed relied upon on behalf of the defendants could not be looked into for w ant of originals having been proved as mere marking of a document as exhibit did not dispense with its proof, as laid down in Sait Tarajee Khimehand and Ors. v. Yelamarti Satyam and Ors., A.I.R. 1971 S.C. 1865 (Para 15), also does not have much significance in the present case. v. Yelamarti Satyam and Ors., A.I.R. 1971 S.C. 1865 (Para 15), also does not have much significance in the present case. Whether or not plaintiffs have sold more than their share, need not be finally decided. If the appellants have not yet sold their share, their share could be determined in partition proceedings. 11. In view of the fact that defendant No. 1 was in possession for 54 years, which finding is not shown to be perverse, denial of injunction sought by the appellants cannot be held to be illegal, so as to call for interference in second appeal. 12. No substantial question of law arises. 13. The appeal is dismissed. No costs.