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2008 DIGILAW 1805 (PNJ)

Ved Parkash v. Sunder

2008-10-24

RAKESH KUMAR GARG

body2008
JUDGMENT Rakesh Kumar Garg, J. 1. This is plaintiff’s second appeal against the judgment and decrees of the courts below whereby the suit of the plaintiff for permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff in the disputed property has been dismissed. 2. The brief facts of the case of the plaintiff are that the plaintiff vide sale deed dated 24.5.2001 had purchased 5 kanal 7 marlas of land (19/36 shares) out of the land bearing Rect. No.23 killa No.23. Since the vendor of the plaintiff was in actual physical possession of the land purchased by him, therefore, after its purchase, he also became co-shares in possession over the suit land. Accordingly, mutation No.5759 dated 31.7.2001 was also got sanctioned in favour of the plaintiff. It was also alleged that the plaintiff after purchasing the suit land cultivated the crop of wheat in the disputed property but the defendants, who are influential and strong persons started interfering in his possession over the suit land without any right, title or interest, and therefore, he filed the said suit for permanent injunction. 3. Notice of the suit was given to the defendants, who contested the suit of the plaintiff by filing their joint written statement, wherein it was averred that they had become owners in joint possession of the disputed property by way of sale deed dated 14.12.2003. They denied that the plaintiff came into possession. They also took certain preliminary objections regarding maintainability of suit, locus standi of plaintiff and non-joinder and mis-joinder of the parties etc. 4. After hearing learned counsel for the parties and going through the evidence on record, the trial Court came to the conclusion that the plaintiff has failed to prove his exclusive possession over the specific portion in undivided property, therefore, he is not entitled to the injunction against the other co-sharers and thus dismissed the suit of the plaintiff. 5. Feeling aggrieved against the aforesaid judgment and decrees of the trial Court, the plaintiff filed an appeal, which was also dismissed by the Additional District Judge,Jhajjar vide impugned judgment and decree dated 8.12.2006. 5. Feeling aggrieved against the aforesaid judgment and decrees of the trial Court, the plaintiff filed an appeal, which was also dismissed by the Additional District Judge,Jhajjar vide impugned judgment and decree dated 8.12.2006. While dismissing the appeal, the lower Appellate Court observed as under:- “After hearing learned counsel for the parties and going through the jamabandis Ex.P3 and D3, Khasra girdawari Ex.D4, it is quite evident that no co-sharer was in exclusive possession over any specific killa or portion of the joint property. There is no dispute with law that it is the duty of the court to restore the injured party to the position which it would have been but for violation of injunction order, but it is required for such party to prove that they were co-sharers in possession of specific portion of the suit land. It is settled law that sale of specific portion of undivided property is nothing but sale of share of the vendor subject to partition and the vendor is entitled to hold possession of such specific portion of partition. It is also settled principle of law that no one can transfer a better title then he himself has. In view of the above law, the plaintiff was required to prove that his vendors were in possession over the specific portion of the joint property which they had purchased from him. Otherwise, the co-sharers is presumed to be in possession over very inch of the land of joint property. The possession of a co-sharer over the suit property remains subject to partition and therefore, I agree with the findings made by learned lower court that the plaintiff has failed to prove his exclusive possession over any specific portion of undivided property and therefore, he is not entitled for injunction prayed for against the defendants.” 6. Still not satisfied, the plaintiffs have filed the present appeal in this Court challenging the judgment and decrees of the courts below. 7. Learned counsel for the appellant has vehemently contended that the courts below have misinterpreted the pleadings of the case and evidence on record which has resulted into perversity of the findings of the courts below. Elaborating further, counsel for the appellant has argued that the respondents have not denied the possession of the appellant on the suit land. 7. Learned counsel for the appellant has vehemently contended that the courts below have misinterpreted the pleadings of the case and evidence on record which has resulted into perversity of the findings of the courts below. Elaborating further, counsel for the appellant has argued that the respondents have not denied the possession of the appellant on the suit land. Thus possession of the appellant on the specific portion of the property (i.e., land in dispute) is admitted by the defendant-respondents in para No.1 of their written statement and both the courts below have failed to consider the pleadings. Learned counsel has further argued that PW2 Partap Singh one of the vendors, in his examination-in-chief had stated that appellant was put in possession of the suit land. The said PW has not been cross-examined by the respondent and the same amounts to admission on the part of the respondents. 8. Learned counsel for the appellant has also relied upon the statement of DW2 to support his plea that he is in possession of a specific portion of undivided property. On the basis of these contentions, learned counsel for the appellant has argued that the judgment and decrees of the courts below are liable to be set aside and he is entitled to decree of the suit as he is entitled to protect exclusive possession. 9. I have heard learned counsel for the appellant and perused the record. However, I find no merit in the contentions raised by the counsel for the appellant. A perusal of para No.1 of the written statement filed by the respondents, it is crystal clear that the defendant-respondent has nowhere admitted the exclusive possession of the appellant on the suit land. Even in para No.1 of the plaint, the plea taken up by the appellant is vague as he has stated that he has purchased the same land which was being cultivated by him earlier. The first part of this paragraph also makes it clear that plaintiff had purchased a share out of the joint khata. The reliance of the appellant on the affidavit Ex.P2 i.e., statement of Partap Singh is also misconceived. Rather the same runs counter to the plea taken by the appellant in para No.1 of the plaint. The first part of this paragraph also makes it clear that plaintiff had purchased a share out of the joint khata. The reliance of the appellant on the affidavit Ex.P2 i.e., statement of Partap Singh is also misconceived. Rather the same runs counter to the plea taken by the appellant in para No.1 of the plaint. In para No.1 of the plaint, the specific case of the appellant is that he has purchased the same land which was being cultivated by him, whereas the statement of PW2 states that they have put into possession the plaintiff on execution of the sale deed. 10. A perusal of the statement of DW2 does not show anywhere that the appellant was in exclusive possession of the suit land. The statement of DW2 is to the effect that sale deed was executed in favour of the plaintiff-appellant correctly. Thus, it is evident that both the courts below on appreciation of evidence have recorded a finding of fact on the basis of revenue record that plaintiff-appellant was not in exclusive possession over any portion of the joint property. It is well settled that sale of specific portion of undivided property is nothing but sale of share of the vendor subject to partition and the vendor is entitled to hold possession of such specific portion till partition of property. It is also settled principle of law that no one can transfer a better title then he himself has. In view of the above law, the plaintiff was required to prove that his vendors were in possession over the specific portion of the joint property which they had purchased from him. Otherwise, the co-sharer is presumed to be in possession over very inch of the land of joint property. The possession of a co-sharer over the suit property remains subject to partition. The plaintiff-appellant has failed to prove his exclusive possession over any specific portion of undivided property. Therefore, I find no infirmity or illegality in the judgment and decrees of the courts below. The question whether the appellant is in exclusive possession of a specific portion of undivided property is a question of fact and the courts below have recorded a concurrent finding of fact against the appellant in this regard. Thus no question of law much less substantial question arises in the present appeal. No merit. Dismissed. Appeal dismissed.