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2023 DIGILAW 2353 (PNJ)

Kaur Singh v. Harbans Singh

2023-08-01

SANJAY VASHISTH

body2023
JUDGMENT Sanjay Vashisth. J. (Oral) Appellant-Kaur Singh has filed present Regular Second Appeal impugning the judgments and decree passed by the Courts below, whereby, suit filed by the appellant herein (plaintiff ) for seeking a decree of permanent injunction has been dismissed by recording the concurrent findings. 2. As per pleaded case of the plaintiff, defendant No.l-Harbans Singh was owner of 41 kanal 14 maria of land as per Jamabandi 2002-03, which is part of suit land 217 kanal 18 maria. The said suit land is in possession of the appellant/plaintiff and his brothers Gurcharan Singh, Jagjit Singh as co-sharers. Defendant No.l is also the grandson of Mai Singh, grandfather of plaintiff and thus, they are related to each other. 3. On 23.08.1995, defendant No.l entered into an agreement to sell with the plaintiff for selling out 16 kanal and 14 maria of his share in land at the rate of Rs.2,70,000/- per acre. An amount of Rs.2 lacs was paid by the plaintiff as earnest money and the target date was fixed as 15.11.1995. Defendant No.l again, entered into an agreement to sell for selling out his remaining land to the appellant/plaintiff vide agreement to sell dated 13.12.1997 at the rate of Rs.2,70,000/- per acre and an amount of Rs.l lac was paid by the plaintiff as earnest money, however, this agreement was pleaded to be an oral sale agreement and no target date for registration of the sale deed was fixed. 4. It is admitted case of the plaintiff that never any suit for seeking a decree of specific performance of act was instituted. However, on 28.11.2005, (after about 10 years of the first agreement to sell), suit for seeking a decree of permanent injunction was instituted by the plaintiff (appellant herein). 5. Courts below, have given concurrent findings on the facts as well as law. It has been held that remedy available with the plaintiff was of filing of a suit for specific performance of act and not the injunction suit, and suit is dismissed for more than one reason:- i) Court has held that admittedly, defendants are the co-owners/co-sharers in the land, and injunction cannot be granted against the other co-sharer. ii) Remedy available was by way of filing suit for specific performance of act. ii) Remedy available was by way of filing suit for specific performance of act. iii) Court has also held that once, ownership of the defendants (contesting defendant) is not disputed by the appellant-plaintiff, he cannot be deprived of his right of alienating the land. 6. While addressing the arguments, counsel for the appellant herein (plaintiff) submits that on the aspect of his possession over the land, the relief of permanent injunction could be granted in his favour. 7. This Court has gone through the reasoning given in paragraph 13 of the judgment of learned trial Court which reads as under:- "13. The plaintiff also seek to restrain the defendants from forcibly dispossessing him from the suit properly. In this regard, reference has been made to the Khasra Girdawari entries and other revenue record, but the plaintiff himself admits possession of the defendants as per agreement Ex.P5 and revenue record produced in the form of Jamabandi Ex.Pl also does not indicate the plaintiff to be in possession of any part of the suit land measuring 41 kanal 14 maria. If at all, Khasra Girdawari entries were subsequently corrected in the name of the plaintiff, it was incumbent upon the plaintiff to prove such revenue record vide which the correction of Khasra Girdawari entries was made. But, Khasra Girdawari entries do not indicate any rapat to this effect and as such, same do not establish the possession of the plaintiff. Even otherwise, by admission of the plaintiff, the defendants are co-sharers and in this regard law is well settled that no injunction could be granted against a co-sharer, especially, when the plaintiff is not indicated to be in exclusive possession of the property. In view of above discussion, the findings of this issue is determined against the plaintiff and in favour of the defendants. " 8. Once, it is admitted case of the plaintiff that as per agreement (Ex.P-5), defendants are in possession of the land, issue of granting injunction against the same defendant(s) does not arise. Even, in the Jamabandi (Ex.P-1), which is proved by the plaintiff himself, nothing is indicated therein that the plaintiff is in possession of the land in question. Moreover, it is settled proposition of law that a co-sharer cannot seek injunction against his other co-sharer. 9. Even, in the Jamabandi (Ex.P-1), which is proved by the plaintiff himself, nothing is indicated therein that the plaintiff is in possession of the land in question. Moreover, it is settled proposition of law that a co-sharer cannot seek injunction against his other co-sharer. 9. Lastly, it is submitted that the application for leading additional evidence filed before the 1st Appellate Court was left undecided, and thus, Appellate Court has committed illegality in deciding the appeal, without there being any consideration on the application filed by the plaintiff under Order 41, Rule 27 of CPC. On being asked by the Court, counsel for the appellant answered that the suit itself was instituted in the year 2005 which was decided on 30.01.2013. Thereafter, first appeal was instituted on 04.03.2013 and the application for leading additional evidence was filed on 17.12.2014 i.e. almost after one year and nine months of pendency of the appeal before the 1st Appellate Court. Thus, application itself is moved at much belated stage that too without any explanation. 10. I have also gone through the contents of the application which is attached with the memo of appeal by the appellant. For convenience, relevant part of the application along with the prayer is reproduced hereinunder:- "Application under Order 41, Rule 27 CPC to produce certified copy of Khasra Girdawari and Jamabandi of the land in dispute as additional evidence. Respected Sir, The application is submitted as under:- 1. That the land in dispute is an agriculture land. The entries of cultivation are entered in the Khasra Girdawari and latest Jamabandi is in the name of appellant and his brothers tenants. Now these copies of documents have been received from the revenue department. Previously these were not available. Hence now the appellant wants to produce the certified copies of Khasra Girdwari and jamabandi showing the cultivating possession of suit land in the name of appellant, the producing of which is more essential for getting justice to the parties and assist the Hon'ble Course to give just decision in the case. Certified copy of Khasra Girdwari for the crop year 2012-2013 is enclosed. It is therefore prayed that the appellant may be allowed to produce the certified copy of revenue record as mentioned above as additional evidence, so that justice be done to the parties. " 11. Certified copy of Khasra Girdwari for the crop year 2012-2013 is enclosed. It is therefore prayed that the appellant may be allowed to produce the certified copy of revenue record as mentioned above as additional evidence, so that justice be done to the parties. " 11. Order 41, Rule 27 of CPC guides us on the principle of law and the circumstances in which the prayer for additional evidence can be considered. Order 41, Rule 27 of CPC is reproduced hereinunder:- 27. Production of additional evidence in Appellate Court- 1. The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. 2. Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission. 12. Counsel for the appellant could not address any submission on the settled proposition of law, moreover, this Court also finds that there is nothing explained in the application, thus, there is no substance in the prayer for leading additional evidence. Further, only for the purpose of showing of the possession, said documents would not be of any help, especially, once, the Court has itself held that as per the admission of the appellant-plaintiff, defendants who are co-sharers are also in the possession. 13. Accordingly, with the aforementioned recorded reasonings, this Court maintains the impugned judgments and decree and the present Regular Second Appeal stands dismissed.