Research › Search › Judgment

Punjab High Court · body

2019 DIGILAW 3329 (PNJ)

Gurjant Singh v. Jagdev Singh & Ors.

2019-12-10

JAISHREE THAKUR

body2019
JUDGMENT Jaishree Thakur, J. (Oral). - This is a regular second appeal that has been filed seeking to challenge the judgment and decree dated 15.11.2016 passed by the trial Court whereby suit of the appellant-plaintiff (hereinafter referred to as the appellant) for permanent injunction seeking restraint against respondent-defendants (hereinafter referred to as the respondents) from interfering into peaceful possession of the appellant qua suit property as described in the head note of the plaint has been dismissed. Appeal preferred against the aforementioned judgment and decree has also been dismissed by the lower Appellate Court vide judgment and decree dated 20.03.2017. 2. In brief, the facts are that father of the appellant had purchased 19 marla gair mumkin constructed plot from Khasra No.273 and 2 marla of gair mumkin garahs from Khasra No.334 on 17.11.1985 from Nirmal Singh i.e. father of respondents No.4 and 5 through a writing on bahi. The said plot is stated to be used as store by the appellant. The appellant's father also purchased 19 marla gair mumkin land from Khasra No.273 along with 2 marla of gair mumkin garah from Khasra No.334 on 17.11.1985 from respondents No.l to 3 namely Jagdev Singh, Resham Singh and Darshan Singh through a writing on bahi. On the said land, a house has been constructed where appellant along with his family is residing. On 02.04.1989, father of the appellant purchased 2 marla of gair mumkin garahs i.e. half share from Avtar Singh and Gurbaksh Singh comprised in Khasra No.335 (0-4), possession of which was also delivered to father of the appellant and after his death, appellant is owner in possession of the same. Respondents with an intention to encroach upon the said plots threatened to dispossess the appellant, which necessitated him to file the present suit. 3. Respondents contested the suit by raising preliminary objections of non-maintainability, locus standi and cause of action. On merits, it was stated that respondents are still owners in possession of the said plot and father of the appellant never purchased said plots. All other averments had also been denied and prayed for dismissal of the suit. 4. In order to prove his case, appellant examined PW1 Haqik Singh, PW2 Basant, PW3 Gurjant Singh and PW4 Kulwinder Singh and tendered documents Ex.PI and P2. On the other hand, respondent No.5 Major Singh appeared as DW1. 5. All other averments had also been denied and prayed for dismissal of the suit. 4. In order to prove his case, appellant examined PW1 Haqik Singh, PW2 Basant, PW3 Gurjant Singh and PW4 Kulwinder Singh and tendered documents Ex.PI and P2. On the other hand, respondent No.5 Major Singh appeared as DW1. 5. On appreciation of evidence, the trial Court dismissed the suit and so did the lower Appellate Court. 6. Learned counsel appearing on behalf of the appellant submits that while appreciating the evidence, both the Courts below have ignored the writings on the bahi with regard to the suit property, which were exhibited as Ex.PI and P2 whereby respondents No.l to 3 namely Jagdev Singh, Resham Singh and Darshan Singh had transferred 19 marlas out of Khasra No.273and handed over possession as well and also transferred 2 marlas of garah out of Khasra No.332 and 335. Similarly, Nirmal Singh transferred 19 marlas out of Khasra No.273 and 2 marlas of garah from Khasra No.334 and 335. Father of the appellant built a house on the said plot and electricity and water connections were obtained in his name. In this manner, the appellant has been able to prove his possession over the suit property. It is settled law that possession of a person cannot be interfered except in due course of law, thus, urges this Court for setting aside of the concurrent finding rendered by both the Courts below. 7. I have heard learned counsel for the appellant, appraised the paper book and am of the view that there is no merit in arguments raised by counsel for the appellant. There is no dispute to the settled law that long and settled possession cannot be interfered except in due course of law. Now the question that arises is, whether the appellant has been able to prove his long and settled possession over the suit property. 8. The appellant has not been able to prove that he is in exclusive possession of the property. Rather the appellant himself admitted that respondents are co-sharers in the suit property as reflected in the jamabandi Ex.P3 & Ex.D1. In view of Full Bench judgment of this Court in Bhartu Vs. Ram Samp 1981 PLJ 204 and Division Bench judgment in Bachan Singh Vs. Swaran Singh 2000(3) RCR (Civil) 70. Rather the appellant himself admitted that respondents are co-sharers in the suit property as reflected in the jamabandi Ex.P3 & Ex.D1. In view of Full Bench judgment of this Court in Bhartu Vs. Ram Samp 1981 PLJ 204 and Division Bench judgment in Bachan Singh Vs. Swaran Singh 2000(3) RCR (Civil) 70. the suit for permanent injunction by a co-sharer against others co-sharers is not maintainable unless and until he is able to prove his exclusive possession. In the present case, appellant has miserably failed to prove that he is in exclusive possession of the suit property. 9. Ex.PI and P2 i.e. writings on bahi do not mention khasra numbers as has been detailed in the head note of the plaint. Moreover, it is mandatory to register immovable property, value of which exceeds hundred rupees, therefore, Ex.PI and P2 are hit by provisions of Sections 17 and 49 of the Indian Registration Act. The jamabandi for the year 2010-2011 produced on record as Ex.P3, which has also been brought on record by respondents as Ex.Dl reveals that the property bearing Khasra No.273 is having area 3 kanals 9 marla, which does not tally with the recitals of Ex.PI and P2 nor any details have been given in these documents. Therefore, jamabandi brought by the appellant is contradictory to his stand taken in the plaint in respect of writings Ex.PI and P2 as well as qua possession. Jambandi being revenue record carries presumption of truth as per Section 44 of the Punjab Land Revenue Act wherein respondents have been shown as owners in possession. 10. As an upshot of my finding, I do not find any illegality and perversity in the judgments and decrees rendered by both the Courts below. Consequently, the second appeal is dismissed.