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2011 DIGILAW 2011 (PNJ)

Churia v. Vikram

2011-11-08

A.N.JINDAL

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JUDGMENT Mr. A.N. Jindal, J.: - The Civil Judge (Senior Division), Kaithal, vide judgment dated 14.11.2008, dismissed the suit of the plaintiffs-appellants (hereinafter referred as ‘the plaintiffs’) for permanent injunction restraining the defendants-respondents (hereinafter referred as ‘the defendants’) from interfering into the peaceful possession of the plaintiffs over the land measuring 270 Kanals 17 Marlas, as fully detailed in para No.1 of the plaint. The appeal preferred by the plaintiffs against the said judgment was also dismissed by the Additional District Judge, Kaithal, on 12.04.2010. 2. Factual matrix, essential for disposal of the present appeal, is that the plaintiffs are recorded as owners in possession of the suit land measuring 270 Kanals 17 Marlas, as fully described in para No.1 of the plaint, situated in the revenue estate of village Pai. Previously, a suit for declaration and possession, filed by Smt. Keshar and Smt. Jehro daughters of Moman was filed against the predecessors of the plaintiffs for ½ share in the suit land and the same was dismissed by the Civil Court on 15.04.1981 and the appeal preferred against the said judgment was allowed by the Court of Additional District Judge, Kurukshetra on 21.10.1982. Thereafter, a Regular Second Appeal No.2416 of 1982 preferred by the plaintiffs No.1 and 2 namely Churia and Mangat Ram in the High Court was also dismissed on 29.05.2004. The legal heirs of Smt. Keshar and Jehro filed an execution application, which was dismissed in default in the year 1999. However, they again filed an execution application. Plaintiff Nos. 1 and 2, in order to avoid unnecessary litigation, purchased the ownership rights of 1354/5417th share of the legal heirs of Smt. Keshar-decree holder vide sale deed No.1594/1 dated 01.01.2002. It was, thus, averred that since the plaintiffs were already in possession over the suit land and they having been not dispossessed by any Court, therefore, they cannot be dispossessed from the said land. 3. Upon notice, the suit was contested by the defendants while denying all the allegations and claiming themselves as co-sharers, it was pleaded that no injunction could be granted against the co-sharers. It was further pleaded that the defendants are in actual physical possession of the suit land by way of agreement dated 21.12.2001, through which, they had purchased the shares belonging to Sh. It was further pleaded that the defendants are in actual physical possession of the suit land by way of agreement dated 21.12.2001, through which, they had purchased the shares belonging to Sh. Ishwar, Miyan Singh and Jagat Ram sons of Smt. Jehro daughter of Moman, vide sale deed No. 1593/1 dated 01.01.2000 pertaining to Khewat Nos.710, 713, 724 to 730, 731, 737 and 738 and in Khasra No.1241/2. It was also asserted that the defendants are in actual physical possession as per their shares and they are in actual physical possession over the land measuring 56 Kanals comprised in Rect. No.79, Killa Nos. 4, 5, 6, 7, 14, 15 and 17. Their vendors had delivered the actual physical possession to them. The shares of the plaintiffs in Khewat No.737 have been shown in following manner:- “Plaintiff-appellant No.1 : 53 Kanals 12 Marlas Plaintiff-appellant No.2 : 33 Kanals 17 Marlas Plaintiff Nos. 3 5, 6 & Proforma respondent No.14 Total in all : 131 Kanals 3 Marlas” 4. It was denied that delivery of possession had been stayed by the High Court in the appeal pending before it. It was further asserted that it does not lie in the mouth of plaintiffs to seek any equity in their favour. The recital in the sale deed in their favour was wrong and it was not binding upon the rights of the plaintiffs. It was just a collusion between the legal heirs of Smt. Keshar and the present plaintiffs in order to jeopardize the rights of the defendants being co-sharers. It was further pleaded that in none of the killa numbers, there is any tubewell or an electric connection, kotha and mount of turi etc. The defendants have sowed the wheat crop and it exclusively belongs to them. The partition proceedings regarding the Khewats are pending before the Assistant Collector, Grade-II, Fatehpur Pundri. It was further asserted that no injunction against co-sharer can be granted. 5. From the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled for decree of permanent injunction as prayed for in the plaint? OPP 2. Whether the plaintiffs have no cause of action? OPD 3. Whether the suit of the plaintiffs is bad for non-joinder of necessary parties? OPD 4. Whether the suit of the plaintiffs is not maintainable? OPD 5. Whether the plaintiffs are entitled for decree of permanent injunction as prayed for in the plaint? OPP 2. Whether the plaintiffs have no cause of action? OPD 3. Whether the suit of the plaintiffs is bad for non-joinder of necessary parties? OPD 4. Whether the suit of the plaintiffs is not maintainable? OPD 5. Whether the defendants are in possession of the suit land, if so, to what effect? OPD 6. Relief.” 6. Both the parties led evidence. The trial Court dismissed the suit of the plaintiffs. The appeal preferred by the plaintiffs also met the same fate. 7. Having heard the contentions raised by learned counsel for the plaintiffs-appellants, it may be observed that the plaintiffs have already lost the case up to the High Court and the suit for declaration and possession preferred by the defendants has been decreed and they had been fighting for their claims since 1973. Now the plaintiffs, by way of present suit, want to thwart the fruits to be earned by the defendants. Their arguments that their possession over the land, owned by the defendants is adverse, has been negated by the High Court. Even if, it is assumed, for the sake of argument, that the plaintiffs are in possession of the land, which stood owned by the defendants, then they could only be treated as trespassers. It is settled by now that no injunction could be granted in favour of the trespasser and against the true owner. Similar observations were made by the Hon’ble Apex Court in cases of Prem Ji Ratansey Shah Vs. Union of India, 1994 (5) SCC 547 . It has been consistently held by the Hon’ble Apex Court in cases of Mahadeo Savlaram Shelke and others Vs. Pune Municipal Corporation and others, 1995 (3) SCC 33 ; Prataprai N. Kothari Vs. John Braganza, 1999 (4) SCC 403 and Sopan Sukhdev Sable and others Vs. Assistant Charity Commissioner and others, AIR 2004 SC 1801 , that injunction cannot be issued in favour of trespasser, as against true owner. Even after the alleged purchase of some share in the land during the pendency of appeal, the plaintiffs became only co-sharers. As such, no injunction could be granted against a co-sharer not in exclusive possession of any portion of the suit land. 8. No substantial question of law arises for determination by this Court. 9. Even after the alleged purchase of some share in the land during the pendency of appeal, the plaintiffs became only co-sharers. As such, no injunction could be granted against a co-sharer not in exclusive possession of any portion of the suit land. 8. No substantial question of law arises for determination by this Court. 9. Resultantly, finding no merit in the appeal, the same is hereby dismissed in limine.