In this second appeal, the Highest Court dismissed the appellant's challenge to the decree holding him a co-sharer. The court affirmed lower courts' findings that the appellant and defendants were joint owners, concluding that his remedy lies in a suit for partition rather than seeking an injunction for possession.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No.2044 of 2012 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.2044 of 2012 (O&M) Date of decision:13.08.2013
Gian Chand
....Appellant
Versus
Bharat Lal alias Bharat Nand and others ....Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present:- Mr. Rajan Bansal, Advocate for the appellant.
RAKESH KUMAR GARG, J (ORAL)
This is plaintiff's second appeal challenging the judgments and decrees of the Courts below
As per the averments made in the suit, plaintiff-appellant had purchased the plot having dimensions 30 x 9 feet fully detailed in the head note of the plaint from defendant No.1-Bharat Lal vide sale deed 27.5.1994 and was put in possession. The defendants have no concern with the suit property but defendant No.1 (now respondent No.1) and Avtar Singh executed sale deed dated 10.8.1998 in favour of defendants No.2 (now represented by LRs i.e respondent Nos. 2 to 6) and 3 (now respondent No.7) in connivance with each other and under the garb of the said sale deed defendants No.2 and 3 have taken illegal and forcible possession of the plot in dispute which was sold by defendant No.1 in favour of plaintiff. Hence the present suit has been filed.
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RSA No.2044 of 2012 (O&M)
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Upon notice, defendant No.1 appeared through counsel and filed the written statement raising various preliminary objections. On merits, the factum qua the sale deed in favour of the plaintiff has been admitted to be correct. It was further admitted that possession of the plot was delivered to the plaintiff. However, it was denied that he executed the sale deed dated 10.8.1998 in favour of defendants No.2 and 3 in connivance and the said sale deed was executed rightly. The remaining averments were denied and prayer for dismissal of the suit was prayed.
Defendants No.2 and 3 filed separate written statements wherein, it was submitted that the sale deed dated 27.5.1994 in favour of the plaintiff-appellant is forged and fabricated document. Plaintiff-appellant is not in possession of any part of the suit property. Sale deed dated 10.8.1998 has been rightly and validly executed. It was further denied that they had taken illegal possession of the plot of the plaintiff-appellant rather they were put in possession of the area purchased by them by way of sale deed. Remaining averments were denied. Dismissal of the suit was prayed for.
After hearing learned counsel for the parties, suit of the plaintiff - appellant for declaration to the effect that he is owner of the suit property and for possession of the said plot, with a further prayer for permanent injunction restraining the respondents from changing the nature of the said plot or alienating the property in question any further in any manner was dismissed by the trial Court vide judgment
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and decree dated 09.02.2011.
Feeling aggrieved from the same, the plaintiff-appellant filed an appeal before the First Appellate Court. The said appeal was allowed partly holding that plaintiff-appellant is entitled to declaration to the effect that he is owner of the plot to the extent of his share measuring 30x9 feet on the basis of the sale deed dated 27.5.1994 and defendants have no concern with the same. However, the remaining relief as claimed in the suit with regard to possession was declined. While deciding the appeal, the First Appellate Court held that original defendant No.1 Bharat Singh (now respondent No.1) along with Avtar Singh had purchased 19 marlas of land vide sale deed dated 14.12.1992 from one Suresh Kumar and Sat Pal. It was further found that out of this property plaintiff purchased land measuring 30x9 feet vide registered sale deed Ex.P1 from respondent Bharat Lal. Defendant No.1- Bharat Lal then sold land to defendants No.2 and 3 vide sale deed dated 10.8.1998.
Thus, there is no dispute with regard to alleged sale deed in favour of the respondent-vendees. Validity of sale deed dated 10.8.1998 has already been held vide judgment Ex.D1 and Ex.D2 proved on record. In view thereof, no error can be found in the findings of both the Courts below to the effect that plaintiff-appellant is the owner of the plot in dispute.
It is consequent upon the said sale deed dated 10.08.1998 that plaintiff alleged that defendants No.2 and 3 in the
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RSA No.2044 of 2012 (O&M)
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garb of said sale deed in connivance with defendant No.1 intent to grab the property of plaintiff and have taken forcible possession thereof.
However, from the evidence on record, it further transpires that the plaintiff as well as defendants No. 2 and 3 have become owner to the extent of land purchased by them out of joint holding held by defendant No.1-Bharat Lal and Avtar Singh on the basis of sale deed dated 14.12.1992. In these circumstances, plaintiff along with defendants No.2 and 3 have become co-sharers to the extent of their respective shares in the suit land and as such, plaintiff was required to seek partition to the extent of his share and not the injunction.
Thus, while non-suiting the appellant to that extent, both the Courts below on appreciation of evidence found that the appellant is a co-sharer in the suit property and in view thereof, his remedy lies in a suit for partition.
No exception can be taken to the aforesaid findings of the lower Appellate Court.
In view thereof, no substantial question of law, as raised, arises in this appeal.
Dismissed.
August 13, 2013 savita
(RAKESH KUMAR GARG) JUDGE
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RSA No.2044 of 2012 (O&M)
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Kadian Savita 2013.08.21 15:16 I attest to the accuracy and integrity of this document High Court Chandigarh
3 issues framed by the court
Whether an injunction for possession is appropriate when the appellant is found to be a co-sharer in the property.
Whether the remedy for a co-sharer lies in a suit for partition rather than a suit for declaration and possession.
Whether substantial question of law arises on facts found by lower courts regarding co-ownership of the plot.
Gian Chand
Bharat Lal alias Bharat Nand
Rakesh Kumar Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
