Kuldeep Kaur and Another Vs Sarabjit Singh and Others

the learne d Courts below whereby the suit filed by the plaintiffs/respondents No.1 and 2 herei n , for permanent injunction restraining the defendants from interferin g into the possession of the plaintiffs ov e r the suit property, has been decreed by both the Courts below.

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The appellants/defendants No.2 and 3 shall hereinafte r be referred to as the ‘appellants’; and the r e spondents No.1 and 2/plaintiff s as the ‘plain t iffs’.

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3. Brief facts of the pre s ent case as pleaded by th e plaintiffs ar e that plaintiffs and their nephew Sandeep Singh being co - sharers, file d a Suit for Permanent Injunc t ion restraining the defendant s from interfe r ing into the peaceful possession of the plaintiffs over the land

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measuring 56 kanals 11 marlas, bearing khewat no. 48, khatauni no. 159, khasra no. 1 24/2min/8-17, 125/2/9-7, 126 / 2/9-7, 127/16-0, 128min/13-0 , situated in t h e revenue estate of village Nan g al, Tehsil and Distt. Faridkot, a s per jamaba n di for the year 2010-11; and for restraining the defendant s from dispos s essing the plaintiffs from the l and mentioned above illegally , forcibly, wit h out due course of law. It wa s pleaded by the plaintiffs tha t Sandeep Sin g h has gone abroad and plaintiffs are cultivating the share o f Sandeep Sin g h and have filed present suit on behalf of Sandeep Singh also . It was averr e d that to deceive and defraud t h e plaintiffs and Sandeep Singh, defendants inter-se had procured a sale deed showing the delivery o f possession of khasra no. 126/2/9-7, which w as not in their possession. Now , defendants w ant to encroach upon the suit land without any right and als o want to inte r fere into the peaceful possessi o n of the plaintiffs and Sandee p Singh over t he suit land, for which the y have no right. Plaintiffs an d Sandeep Sin g h are in exclusive possession o f the suit land in their own righ t and being c o-sharers. It has been furthe r averred that defendants ar e threatening t he plaintiffs that they will dis p ossess them forcibly from th e suit land an d will interfere into their posse s sion over suit land without an y right. Earlier , in an attempt to interfere into the possession of the plaintiff s over the sui t land, defendant no.2 Kuldeep K aur had filed an application fo r correction o f khasra girdawari alleging h e r possession over the abov e referred 9 k a nals 7 marlas of land, but sa m e was dismissed by Assistan t Collector 2n d Grade, Kotkapura after visitin g the spot and after verifying th e

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possession o f the plaintiffs. Plaintiffs requ e sted the defendants to admi t their claim, b ut to no effect. Hence, the suit. 4. Upon notice, the appellants had put in appearanc e before the l e arned trial Court filing written statement resisting the suit o n numerous grounds inter alia contending t hat the suit is barred by th e principle of r es judicata; suit against co-sha r er does not lie as no injunctio n can be gran t ed against the co-sharers; the plaintiffs are estopped by thei r own act an d conduct from filing the present suit; and the suit is bad fo r non-joinder o f necessary parties as all co-s h arers have not been impleaded as party. Var i ous pleas were taken on the m e rits of the matter as well. 5. Defendant No.1 was pro c eeded against ex parte by th e learned tria l Court as he failed to appea r in the Court despite service . Plaintiffs fil e d replication reiterating th e version in the plaint and controvertin g the averments made in the w r itten statement.

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On the basis of pleading s of the parties, following issue s

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were frame d vide order dated 08.09.2015:-

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“1. Whether the plaintiff is en t itled to the relief of permanen t injunction, as prayed for? OPP

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2. Whether the suit is barred by principle of res-judicata? OPD 3. Whether plaintiffs are barre d by their own act and conduc t f rom filing the present suit?OP D

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4. Whether suit is not maintain a ble? OPD 5. Whether suit is bad for no n -joinder of necessary parties ? OPD

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6. Relief.”

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On the basis of pleadi n gs and oral & documentary evidence ad d uced by the parties, the learned trial Court decided issue No.1 in favo u r of the plaintiffs and against t h e defendants; issues No.2 & 4 against the d efendants and in favour of the plaintiffs; and issues No.3 & 5 against the d efendants being not pressed. C onsequentially, the suit of the plaintiffs wa s decreed by the learned trial Court with costs vide judgment and decree d ated 19.02.2018. Against the s ame, the appeal bearing Civil Appeal No.1 7 5 of 03.04.2018 was filed by t h e appellants/defendants No.2 and 3, which was dismissed by the lear n ed Additional District Judge, Faridkot vid e judgment and decree dated 0 8 .08.2018. Hence, the present second appeal.

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Learned counsel for the appellants assails the impugned j u dgments and decrees of the learned Courts below by submitting t h at out of the total joint land h olding of 256 kanal 16 marla, the plaintiffs have filed the civil suit only qu a suit land measuring 56 kanal 11 marla. Admittedly, the plaintiffs and the d efendants are co-sharers. The suit land is thus, part of 256 kanal 16 marl a which is a joint khata and no partition ha s taken place. It is contended t h at it is established position in law that no i n junction can be granted in fav o ur of or against a co-sharer.

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It is further submitted th a t the suit of the plaintiffs was decreed on t he ground that the plaintiffs w ere shown to be in exclusive possession o f the land in dispute as per the Jamabandi (Ex.P2). Learned counsel con t ends that this approach of t he learned Courts below is

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incorrect and perverse as in the Jamaba n di, in Khatoni No.159, three persons are shown to be in possession i. e . the two plaintiffs and one Sandeep Sin g h. It is submitted that though it is the pleaded case of the plaintiffs tha t they were filing the suit on behalf of the said Sandeep Singh also, howev e r, they had miserably failed to p roduce and prove any GPA to show that h e is ad idem with the plaintiffs in the filing of the suit. 10. It is submitted even th e Jamabandi (Ex.P2) does not show the pl a intiffs to be in exclusive posses s ion of the suit land measuring 56 kanal 11 m arla. It is submitted that Sandeep Singh is also shown to be in possessio n of the land along with the plai n tiffs. Therefore, the finding of the learned C ourts below that the plaintiffs are in exclusive possession of the suit land , is contrary to the record. Mor e over, the Jamabandi (Ex.P2) is a rebuttable document. It is submitted that for the afore-stated reason, the learned Courts below have committe d grave illegality by granting injunction i n favour of the plaintiffs as th e y are none else but the cosharers of t h e appellants. It is reiterated t hat it is settled law that no injunction c a n be granted against a co-share r and in favour of a co-sharer. 11. Learned counsel for th e appellants further contends that the plaintiffs have even withheld th e Sale Deed vide which they purchased t h e land from the other co-shar e r. It is submitted that had the plaintiffs pr o duced the said Sale Deed it w o uld have been the clear and best evidence to prove as to whether the p o ssession of any specific parcel of land was e ver given to the plaintiffs by th e ir vendor or not.

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It is lastly argued that pr e viously also a suit was filed by the plaintiff regarding the same land and a g ainst the same parties which was withdrawn on 21.5.2014. This fact h a s been admitted by plaintiff No.2/ Para m jeet Singh/PW1 before the lea r ned lower Appellate Court on 20.07.2017. As such, the present suit w as not maintainable. It is accordingly p rayed that the present appeal be allowed and the impugned judgments a n d decrees of the learned Courts below be set aside.

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Heard.

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It is undisputed that th e total land holding is of 256 kanal 16 marla which is joint in nature in which the plaintiffs and defendants a nd appellants are co-sharers a nd in which no partition has taken place. However, as per the evi d ence on record specifically Jamabandi (Ex.P2), the exclusive possessio n of the plaintiffs was shown and proven o ver suit land measuring 56 ka n al 11 marla. In order to prove their exclus i ve possession over the suit property, the plaintiffs also produced copy of khasra girdawari from Sa u ni 2013 to Harri 2014 (Ex.P3), copy of application for correction of girda w ari (Ex.P4) and order dated 29.01.2014 p assed by Assistant Collector ( E x.P5). The plaintiff No.2 had himself step p ed into the witness box as P W 1 and tendered into evidence the above s aid documents to prove the exclusive possession of the plaintiff over the suit property along wit h said Sandeep Singh. As the exclusive po s session of the plaintiffs over t h e suit property stood proven

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on record, i t has been rightly held that th e appellants have no right to disturb their possession.

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It is further my considered view that a most just and reasonable o rder has been passed by the learned Courts below. It has been corre c tly observed that the defen d ants are at liberty to seek partition of the property by filing appropriate proceedings as follows: “ ....plaintiffs are entitled to protect their po s session over the suit property, but this wi l l be subject to right of the partition by the defendants. Defendants have the remedy to file ap p lication for partition before revenue aut h orities. This court is of the view that defendants have no right to interfere into the possession of the plaintiffs and further from dispossessin g the plaintiff from the suit pro p erty. This court is of the view that this jud g ment shall have no effect on t h e rights of the parties during the partition proceedings before revenue a u thorities, if any of the parties apply for pa r tition proceedings...”. 16. As regards the plea of t h e appellants that the present suit was bar r ed by principle of res judicata, I find no merit in the same as admittedly t he previous suit filed by th e plaintiffs was dismissed as withdrawn v ide order dated 21.05.2014. As such, the previous suit was not decided o n merits; and is therefore not b arred by res judicata. 17. It has also been argue d by the appellants that the plaintiffs ha d failed to produce the sale d e ed vide which they acquired title over th e suit property, to identify whe t her a particular part was sold

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to them by their vendor. However, the said argument is liable to be rejected as it is contended that from the S ale Deed it would be evident that the pla i ntiffs had purchased 1760/43 5 5 share out of 256 kanal 11

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marla.

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18. Moreover, before partin g , it may be pointed out that the present a ppeal is of the year 2019 and n otice has not yet been issued in the same as it has been adjourned eithe r at request of or due to nonappearance of learned counsel for the appellants on 10.05.2022, 19.09.2023, 16.11.2023, 15.04.2024, 22.05. 2 024 and 05.08.2024. 19. As such, for the afore-sta t ed reasons I find no ground is made out t o interfere in the well-reasone d judgments of the ld. Courts below. The p resent appeal is dismissed.

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Pending application(s) if a ny also stand(s) disposed of.

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04.02.2025		(Nidhi Gupta)
Sunena		Judge
Whether spe Whether rep aking/reasoned: ortable:	Yes/No Yes/No

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Kuldeep Kaur and Another v. Sarabjit Singh and Others

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Kuldeep Kaur and Another v. Sarabjit Singh and Others

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