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2005 DIGILAW 474 (PNJ)

Tara Singh v. Maghar Singh

2005-04-01

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. The instant petition filed under Article 227 of the Constitution prays for quashing order dated 3.2.2005 passed by the learned District Judge, Sangrur upholding the view taken by the learned Additional Civil Judge (Sr. Division), Dhuri which is to the effect that the plaintiff-respondent being in exclusive possession is entitled to interim relief of injunction restraining the defendant-petitioner from dispossessing him forcibly and illegally from the suit property till the final decision of the case. The learned trial Court has placed reliance on the entries made in the jamabandi for the year 1998-99 showing that the plaintiff-respondent is co-owner of the suit land and has also been recorded to be in exclusive possession. Reliance has also been placed on the entries made in Khasra Girdwaris from 1989 onwards. On the basis of Section 44 of the Punjab Land Revenue Act, 1887, the trial Court has raised a presumption in favour of the entries made in jamabandis and considered these entries to be true. The finding of the learned trial Court is discernible from the following extracts of para 6, which reads as under: "Thus, in view of the revenue record placed on the file it is clear that plaintiff Maghar Singh is in exclusive possession of the property in dispute as co-owner. The defendant in his written statement had alleged that he is in exclusive possession of the property in dispute on the spot and entries in the revenue record are not correct. But this contention is devoid of any merit. There is no entry in favour of the defendant to prove that he is in exclusive possession of the property in dispute. Had he been in possession of the property in dispute, then why khasra girdawari from 1989 onwards is being recorded in favour of the plaintiff. In the revenue record plaintiff is recorded in exclusive possession of the property in dispute as co-owner. Whether this revenue record is incorrect can not be decided at this stage without any evidence on the file. Prima-facie on the basis of the revenue record, it is clear that plaintiff being co-owner is in exclusive possession of the property in dispute." 2. Whether this revenue record is incorrect can not be decided at this stage without any evidence on the file. Prima-facie on the basis of the revenue record, it is clear that plaintiff being co-owner is in exclusive possession of the property in dispute." 2. On the basis of the afore-mentioned finding and placing reliance on a Full Bench judgment of this Court in the case of Bhartu v. Ram Sarup, 1981 PLJ 204, it has been concluded that a co-owner, who is in exclusive possession of the property is entitled Jo protect his possession till partition of the joint holding. The view taken by the learned trial Court has been approved by the learned District Judge by rejecting the argument that if a portion has been shown in the jamabandis as Gair Mumkin Makan in Khasra No. 613 it would not lead to an inference that the defendant-petitioner was in possession of the same. 3. After hearing the learned counsel at a considerable length and perusing the orders passed by both the Courts below, I am of the view that there is no legal infirmity in the exercise of discretion by the Courts below. On facts, there is sufficient evidence in the shape of revenue record to show that the plaintiff-respondent is in exclusive possession and in accordance with law, a co-owner is entitled to protect his exclusive possession. This view has been further fortified by a Division Bench of this Court in the case of Bachan Singh v. Swaran Singh, 2000(2) P.L.J. 143. The question considered by the Division Bench is whether a co-owner of the property was entitled to seek an injunction against other co-owner, who has been in exclusive possession of the entire or part of the property restraining him from making any construction in that part of the property. The answer has been provided in the concluding para 17(i) and the same reads as under: "On a consideration of the judicial pronouncements on the subject, we are of the opinion that: (i) A co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of co-owner out of possession." 4. In view of the above, it is evident that a co-owner who is not in possession of part of the property, can not be permitted to dispossess the other co-owner who is in exclusive possession thereof. Therefore, there is no illegality or such an irregularity by the Court, which may warrant interference of this Court under Article 227 of the Constitution. 5. The petition is without merit and the same is dismissed. It is made clear that any observation made in this order shall not be construed as an expression of opinion on the merits of the suit.