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2024 DIGILAW 1047 (PNJ)

Shakti Singh v. Darshan Singh

2024-07-12

RITU TAGORE

body2024
JUDGMENT : Mrs. Ritu Tagore, J. Being aggrieved by the concurrent findings returned against him, appellant-plaintiff has preferred this regular second appeal against the impugned judgment and decree dated 11.09.2018 passed by the learned Additional District Judge, Gurdaspur, affirming and upholding the judgment and decree dated 02.12.2017 passed by the learned Civil Judge, Junior Division Gurdaspur. 2. For the sake of convenience, parties to the lis hereinafter, shall be referred to by their original status in the suit. 3. Appellant/plaintiff instituted a suit for permanent injunction, seeking to restrain defendants/ their servants/ agents/ attorney etc., from taking forcible possession of the land measuring 4 kanal 19 marla, bearing khewat no.39/30 khatauni no. 33, khasra no. 9//24/1 (1-9) khatauni No.44 khasra no.9//26 (3-10), situated in the revenue estate of village Jahangirpur HB No. 311, Tehsil and District Gurdaspur as per Jamabandi for the year 2014-15 (referred to as the suit property). 4. Plaintiff claimed his exclusive cultivating possession on the suit property, having inherited from his late father Shri Sunder Dass. It is claimed that for the past forty years, he has been cultivating the suit property without any interference from any quarter. It is asserted that defendants have no right or title in the suit property. With intention to dispossess, they came onto the suit property with tractors and attempted to forcibly take possession of the suit property but failed. However, proclaimed to dispossess him from the suit property, that necessitated him to file the suit. 5. Defendants upon appearance filed the written statement and controverted the version of the plaintiff, besides raising objections regarding maintainability of the suit, concealment of true facts from the Court and non-joinder of co-sharers, the necessary parties. On merits, defendants denied the exclusive possession of the plaintiff on the suit property. It is stated that plaintiff is a co-sharer in the suit property along with others, including defendant No.3. By denying the remaining averments of the plaintiff, pleaded for the dismissal of the suit, being meritless. 6. No rejoinder was filed by the plaintiff to the written statement of the defendants. Since, parties were at variance, learned lower Court framed the following issues :- “1. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP 2. Whether the suit is not maintainable? OPP 3. Relief.” 7. 6. No rejoinder was filed by the plaintiff to the written statement of the defendants. Since, parties were at variance, learned lower Court framed the following issues :- “1. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP 2. Whether the suit is not maintainable? OPP 3. Relief.” 7. In order to prove its case, plaintiff appeared as PW1 and in his affidavit of evidence (PW1/A), reiterated the version of the plaint and examined Darshan Singh, Lambardar (PW-2) in support of his version. To rebut the case of the plaintiff, defendant No.1 Darshan Singh appeared as DW-1 and in his affidavit DW1/A recounted the version of his written statement. 8. After appraisal of the evidence, the learned trial Court dismissed the suit of the plaintiff. The first appeal filed by the plaintiff was also dismissed by the learned Additional District Judge, Gurdaspur, affirming the findings of the learned trial Court below. 9. Learned counsel for the appellant contends that Jamabandi entries for the year 2014-15 Ex.P-1 records plaintiff as owner in possession of the suit property. The plaintiff, while appearing as PW1 deposed that he is in cultivating possession of the suit property for the last 40 years and defendants have no right or title to interfere in his exclusive cultivating possession over the suit property except in due course of law. The defendants interfere in his possession illegally. Darshan Singh, Lambardar PW-2 supported the oral account of the plaintiff with respect to his exclusive possession on the suit property and unlawful interference of the defendants. It is argued by the learned counsel for the appellant that the Courts below have failed to appreciate the unrebutted evidence of the plaintiff and erred in dismissing his suit. It is stated that the inference and conclusions drawn by the learned Courts below are wholly illegal and unsustainable in the eyes of law and are liable to be set aside. A prayer is made to allow the appeal, set aside the impugned judgments and decree his suit. 10. I have heard learned counsel for the appellant and have gone through the record with the valuable assistance of the learned counsel. 11. The learned Courts below have relied upon an unequivocal and categorical admission of the plaintiff (PW-1) that suit property is a joint holding and has not been partitioned yet. 10. I have heard learned counsel for the appellant and have gone through the record with the valuable assistance of the learned counsel. 11. The learned Courts below have relied upon an unequivocal and categorical admission of the plaintiff (PW-1) that suit property is a joint holding and has not been partitioned yet. Similarly, Darshan Singh PW-2, the witness of the plaintiff, during his cross-examination also admitted that suit property is joint between the parties. The learned Courts below relied upon the Jamabandi entry for the year 2014-15, Ex.P-1, noticing the fact that plaintiff and defendants are co-sharers in the suit property. Defendant while appearing as DW-1 testified that plaintiff is a co-sharer in the suit property. Based on aforesaid admissions, the learned Courts below concluded that the suit property is joint and has not been partitioned and the exclusive possession of the plaintiff on the suit property is not established. Therefore, plaintiff is not entitled for the relief of injunction, seeking to restrain the defendants, the co-sharers, from using the suit property, a joint holding. 12. The learned counsel for the appellant failed to point out any infirmity in the conclusions drawn by the Courts below or having arrived without any basis or evidence. The learned counsel for the appellant failed to controvert the specific observations of the Courts below made with respect to the categorical admissions made by the plaintiff admitting the suit property as joint. Admission, when clear and not withdrawn, is a good and material source of evidence to rely upon to decide a fact in issue. 13. It is trite law that a co-sharer/co-owner is the owner of every inch of the land till such time as the partition is not effected. In this regard reference can be made to the judgments titled as Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram, AIR 1961 Punjab 528; Bhartu Vs. Ram Sarup, 1981 PLJ 204 (FB) wherein it has been observed that a co-owner has interest in the whole property and in every parcel of it. Possession of joint property by one co-owner, is in the eyes of law, possession of all even if all but one are actually out of possession. A mere occupation of a larger portion or even of entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. Possession of joint property by one co-owner, is in the eyes of law, possession of all even if all but one are actually out of possession. A mere occupation of a larger portion or even of entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar right of other co-owners. Co-sharer in possession exclusively of some portion of joint holding not more than his share is entitled to continue in possession till joint holding is partitioned and can transfer that portion subject to adjustment at the time of partition. The position of law has been consistently followed by the Courts. 14. In the light of the facts and the judicial pronouncements, the plaintiff-appellant cannot seek a blanket prohibitory injunction decree against the defendants, who are admittedly co-sharer with him in the suit property, joint holding. 15. All these factors taken together, makes no ground to form a different opinion to bring the findings of the learned Courts below within the realm of perversity. 16. For the reasons aforementioned, I do not find any illegality or perversity, in the concurrent findings, which are based on sound application of oral and documentary evidence. No ground for interference is made out much less involvement of any substantial question of law. 17. Resultantly, there is no merit in the appeal and is, hereby, dismissed. Pending application(s), if any, shall also stands disposed of.