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2015 DIGILAW 957 (PNJ)

BEANT SINGH v. ATMA SINGH

2015-05-19

BHARAT BHUSHAN PARSOON

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JUDGMENT : BHARAT BHUSHAN PARSOON, J. 1. This Regular Second Appeal is directed against judgment and decree dated 18.12.2013 passed by District Judge, Hoshiarpur vide which judgment and decree dated 29.10.2010 passed by the lower court, was set aside, wherein suit of plaintiff Beant Singh, appellant herein, for seeking a decree for permanent injunction restraining defendant Atma Singh, respondent herein, from interfering in his exclusive possession over 3 Kanal 2 Marlas of land detailed and described in the head note of the plaint till partition in due course of law, had been decreed by the lower court. 2. Claim of the plaintiff-appellant in the suit was that Atma Singh, defendant-respondent, and his deceased brother Piara Singh were the joint owners of land in village Kainthan. Said Piara Singh sold 3 Kanal 12 Marlas of land comprised in 188/306, 189/307, 190/308, 309 and 733/1090 to the plaintiff-appellant for a total consideration of Rs. 15,000/- vide registered sale deed dated 3.7.1989 with ½ share of tubewell bore, engine, fan, band alongwith right of passage and water channel. It was further pleaded that exclusive possession of 3 Kanal 12 Marlas of land comprised in Rectangle No.50//4/1 (7-18) was handed over to the plaintiff-appellant. Since then, he was claiming himself to be in exclusive peaceful possession thereon. It was further pleaded by him that sugarcane and paddy crop was cultivated by him in the said land. Now after the death of Piara Singh, defendant-respondent Atma Singh purchased some land from widow of Piara Singh. The defendant-respondent was bent upon to dispossess the plaintiff-appellant from the suit land forcibly. He had also demolished the passage being used by the plaintiff-appellant thereby causing loss to him to the tune of Rs. 80,000/-. 3. The aforesaid claim of the plaintiff-appellant was contested by the defendant-respondent in his written statement wherein exclusive possession of the plaintiff-appellant had been denied, whereas it had been averred that the defendant-respondent and his wife were recorded joint owners in the suit land. It was further mentioned that Piara Singh vendor of the plaintiff had no right to sell tubewell bore, engine etc. Certain preliminary objections regarding maintainability of the suit, plaintiff having not come to the court with clean hands and having no cause of action to file the suit had also been taken. Dismissal of the suit had been sought. 4. It was further mentioned that Piara Singh vendor of the plaintiff had no right to sell tubewell bore, engine etc. Certain preliminary objections regarding maintainability of the suit, plaintiff having not come to the court with clean hands and having no cause of action to file the suit had also been taken. Dismissal of the suit had been sought. 4. The plaintiff-respondent in his replication had reiterated the assertions made in the plaint while controverting the stand taken by the defendant in the written statement. On pleadings of the parties, the following issues were framed on 6.2.2006: 1. Whether plaintiff is in exclusive possession of the suit land and sugarcane crop is standing in the suit land? OPP 2. Whether the plaintiff is entitled to the injunction? OPP 3. Whether the plaintiff is entitled to recover Rs. 80,000/- as damages as detailed in the plaint for removing the tubewell engine operates as alleged? OPP 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiff has not come to the Court with clean hands? OPD 6. Whether the plaintiff has no cause of action to file the present suit? OPD 7. Whether plaintiff is estopped by his own act and conduct from filing the present suit? OPD 8. Relief. 5. After receiving oral as well as documentary evidence led by the parties and providing a hearing to their respective counsel, issue Nos.1 and 2 were decided in favour of the plaintiff, whereas issue No.3 was decided against the plaintiff. Issues No.4 to 7 were decided against the defendant. Consequently, suit of the plaintiff was decreed by the lower court vide judgment dated 29.10.2010. The decree had followed. 6. The decree of the lower court was taken in appeal by the defendant-respondent. Agreeing with the claim of the defendant, reversing the judgment and decree dated 29.10.2010 of the lower court, suit of the plaintiff was dismissed by the first appellate court vide judgment and decree dated 18.12.2013. 7. In this Regular Second Appeal, substantial questions of law needing determination by this Court are as under: (i) Whether the plaintiff is entitled to protect his exclusive possession over a part of joint holding of land till the land is partitioned by revenue-authorities? 7. In this Regular Second Appeal, substantial questions of law needing determination by this Court are as under: (i) Whether the plaintiff is entitled to protect his exclusive possession over a part of joint holding of land till the land is partitioned by revenue-authorities? (ii) Whether the findings on issues which were neither pressed nor any evidence was led before the learned trial court can be reversed in the appeal? and, (iii) Whether the impugned judgment and decree of the first appellate court suffers from perversity of finding and as such, liable to be set aside? 8. An application bearing CM No. 685-C of 2014 was filed by the appellant-plaintiff under Order 41, Rule 27 CPC for leading additional evidence by placing on record Annexures A-1 to A-5. Vide order dated 21.3.2014, the said documents were permitted to be placed on record. Annexure A-1 is an application for partition of land measuring 7 Kanal 17 Marlas filed by Inderdeep Singh and Harvinder Singh sons of Atma Singh, respondent-defendant. Annexure A-2 is an application for partition of land measuring 7 Kanal 8 Marlas, 5 Kanal 10 Marlas, 4 Kanal 13 Marlas, 5 Kanal 7 Marlas and 2 Kanal 15 Marlas in different Khewats which had been filed by appellant-plaintiff Beant Singh against respondent-defendant Atma Singh and his wife and two sons. Annexure A-3 is Naksha-A of village Kainthan. Vide Annexure A-4, appeals against order dated 31.7.2006 passed by Assistant Collector Ist Grade, Dasuya were accepted and the said order was set aside; both the appeals were remanded to the lower court. Vide Annexure A-5, revisions filed by both the parties were accepted and cases were remanded. 9. During the course of arguments, learned counsel for the respondent-defendant did not raise any objection with regard to additional evidence by way of the aforesaid documents and even did not seek any opportunity to rebut the aforesaid documents. 10. In order to prove his case, plaintiff Beant Singh had appeared in the witness box as PW1 and had deposed on oath that he had purchased 3 Kanal 12 Marlas of land from Piara Singh vide sale deed dated 3.7.1989 (Ex.P1) for a sale consideration of Rs. 15,000/- alongwith ½ share in the tubewell, engine etc. 10. In order to prove his case, plaintiff Beant Singh had appeared in the witness box as PW1 and had deposed on oath that he had purchased 3 Kanal 12 Marlas of land from Piara Singh vide sale deed dated 3.7.1989 (Ex.P1) for a sale consideration of Rs. 15,000/- alongwith ½ share in the tubewell, engine etc. He further deposed that possession of the suit land was delivered to him by Piara Singh and since the date of his purchase, he was in exclusive possession of the suit land with 23 Karams front. He further deposed that sugarcane crop was standing in the suit land and the said crop was inspected by Tehsildar, Dasuya in partition proceedings which was confirmed in appeal by SDM, Dasuya. The plaintiff had further averred that the defendant-respondent was illegally interfering in his possession and had caused a loss of Rs. 80,000/- to him. 11. PW2 Santokh Singh, marginal witness, had identified his signatures on sale deed dated 3.7.1989 (Ex.P1). PW3 Chhinder Singh deposed that Piara Singh had mortgaged land measuring 5 Kanals with possession for a sum of Rs. 6,000/- on 6.7.1989 with his wife vide mortgage deed (Ex.P2) which was redeemed on 17.7.1989. He further deposed that said amount was paid by Beant Singh. This witness has further deposed that possession was delivered to Beant Singh plaintiff with 23 Karams front on Dasuya-Miani road. PW4 Gurnam Singh produced the record with regard to Piara Singh. 12. On the strength of the aforesaid evidence produced by the plaintiff-appellant, it is vehemently contended that Piara Singh brother of the defendant had sold the suit land to the plaintiff-appellant vide sale deed alongwith tubewell and had also delivered possession of the suit land to the plaintiff-appellant. Resultantly, it is contended that when the plaintiff was proved to be in exclusive possession of the suit land, the defendant had no right to oust him from the suit property without due course of law. 13. On the other hand, the defendant examined DW1 Charanjit Singh who deposed that defendant-respondent Atma Singh was in possession of the suit property since long whereas the plaintiff never got possession of the suit property. DW2 Atma Singh defendant stated that he was in possession of the suit land since 1965 and that Piara Singh or plaintiff Beant Singh had never got possession of the suit property. DW2 Atma Singh defendant stated that he was in possession of the suit land since 1965 and that Piara Singh or plaintiff Beant Singh had never got possession of the suit property. He further deposed that he was in cultivating possession of the suit land. 14. Learned counsel for the defendant, respondent herein, contended that since no documentary evidence had been produced by the plaintiff, appellant herein, to prove his exclusive possession on the suit land, he was not entitled to the injunction prayed for. 15. Hearing has been provided to the counsel for the parties while going through the paper book as also the record available. 16. Admitted facts between the parties are that sale deed (Ex.P1) was executed in favour of Beant Singh plaintiff-appellant by Piara Singh, brother of Atma Singh defendant-respondent and that partition proceedings between the parties are going on. 17. Even otherwise, execution of registered sale deed (Ex.P1) is duly proved by the plaintiff, appellant herein, while appearing in the witness box as PW1 and by producing Santokh Singh (PW2), marginal witness of the sale deed. There is no rebuttal to the aforesaid evidence of the plaintiff by the defendant-respondent. It is, thus, duly proved on record that sale deed (Ex.P1) was executed by Piara Singh deceased in favour of Beant Singh, plaintiff, appellant herein, on 3.7.1989. 18. On the basis of sale deed (Ex.P1), plaintiff-appellant had become co-owner in the joint land measuring 25 Kanal 11 Marlas which included the suit land comprised in Rectangle No.50, Killa No.4/1 (7-8). Even Atma Singh defendant appearing as DW2 admitted in his crossexamination about co-ownership of the appellant-plaintiff which is as under: "It is correct that my brother Piara Singh has died. He was also co-sharer in this land. x x x I do not know that how much share he owned. It is correct that my brother Piara Singh had sold 3 Kanals 12 Marlas land in 1989 to the plaintiff which was in 5 Mushteels." 19. From the evidence led by the plaintiff, appellant herein, it is amply proved that after execution of the sale deed, possession of the suit land was delivered to the plaintiff-appellant and thereafter, he continued in exclusive possession thereof. From the evidence led by the plaintiff, appellant herein, it is amply proved that after execution of the sale deed, possession of the suit land was delivered to the plaintiff-appellant and thereafter, he continued in exclusive possession thereof. The plaintiff has emphatically stated that he had sown sugarcane crop in the suit land which fact was also admitted by Atma Singh defendant-respondent while appearing in the witness box as DW2. 20. When the defendant-respondent has admitted execution of the sale deed (Ex.P1) and also the fact of sowing of sugarcane crop in the suit land by the plaintiff, the pleaded case of the plaintiff-appellant is duly proved that he is in exclusive possession of the suit land and he had sown sugarcane crop therein. In the partition proceedings, a revenue officer had also visited the spot. From the perusal of Annexure P-3, Naksha-A of village Kainthan, Hadbast No.131, Tehsil Dasuya, District Hoshiarpur prepared during partition proceedings, it is clearly mentioned that Beant Singh plaintiff-appellant is in cultivating possession of land measuring 3 Kanal 12 Marlas. Charanjit Singh (DW1) stated in his cross-examination that he is not a summoned witness. He had come alongwith Atma Singh. Defendant Atma Singh is his maternal uncle. As such, evidence of DW1 being nephew of defendant Atma Singh and being a highly interested witness, cannot be given any weight. 1. Admittedly, sale deed (Ex.P1) was executed regarding share of joint holding wherein specific Khasra numbers had been mentioned and in these circumstances, the same will be treated as sale of share only. The plaintiff-appellant who is in exclusive possession of the suit land is entitled to protect the said possession against forcible occupation by the defendant. The contention of the learned counsel for the defendant-respondent that since the plaintiff-appellant has failed to produce any copy of Jamabandi or Khasra-Girdawri showing his exclusive possession over the suit land, cannot be sustained because it is the consistent case of the plaintiff-appellant that he had purchased the suit land out of the joint Khata and due to joint Khata, partition proceedings between the parties are going on. 22. When both the parties are co-sharers as mentioned in the revenue record, they were compelled to file partition proceedings. Here much stress has been laid on copy of Jamabandi for the year 2003-04 where joint Khata of the land has been shown. 22. When both the parties are co-sharers as mentioned in the revenue record, they were compelled to file partition proceedings. Here much stress has been laid on copy of Jamabandi for the year 2003-04 where joint Khata of the land has been shown. The said Jamabandi for the year 2003-04 (Ex.D7) is of no relevance because the plaintiff had purchased the suit land way back in the year 1989 from Piara Singh and partition proceedings between the parties had not attained finality. 23. Status of the co-owner is well-defined under Section 44 of the Transfer of Property Act, 1882, which reads as under: "44. Transfer by one co-owner.- Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same' but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house." 24. Where a co-owner is in possession of a specific portion of joint holding and is recorded as such in the revenue record, on transfer of any right, title or interest from the portion in his specific possession, his vendee would be entitled to protect the portion so transferred without however asserting exclusive ownership to the portion so transferred and possessed till such time as joint estate is not partitioned. In this respect, reference may be made to the Full Bench judgment of this Court in Ram Chander v. Bhim Singh and others 2008(3) RCR (Civil) 685. 25. By proving the sale deed Ex.P1 in view of Section 44 of the Transfer of Property Act, 1882, the appellant-plaintiff had become co-sharer in the joint Khata. Every co-sharer in the joint Khata has a right over every inch of the joint land. Admittedly, partition proceedings are pending between the parties. 25. By proving the sale deed Ex.P1 in view of Section 44 of the Transfer of Property Act, 1882, the appellant-plaintiff had become co-sharer in the joint Khata. Every co-sharer in the joint Khata has a right over every inch of the joint land. Admittedly, partition proceedings are pending between the parties. In this view of the matter, when the appellant-plaintiff is in established exclusive possession over the suit land, he is entitled to be protected by way of injunction in his favour till partition proceedings are finalised. 26. In view of the above discussion, the findings recorded by the first appellate court being perverse are reversed while the findings recorded by the lower court are affirmed. As such, all the substantial questions of law are answered in favour of the appellant-plaintiff. 27. Squally, setting aside the impugned judgment and decree dated 18.12.2013 of the first appellate court, this Regular Second Appeal is accepted. Suit of the appellant-plaintiff is decreed in terms of judgment and decree dated 29.10.2010 passed by the lower court, which is hereby affirmed. Decree sheet be prepared.