Possession follows title, and co-owners are entitled to use and possession of the common owned property.

VALMIKI J. MEHTA, J.

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellants/defendants impugning the concurrent judgments of the courts below; of the Trial Court dated 31.8.2005 and the First Appellate Court dated 11.4.2008; by which the suit for injunction filed by the respondents/plaintiffs was decreed and appellants/defendants were restrained from interfering within peaceful possession of the suit land admeasuring 311 sq. yds. forming part of Khasra No. 304/2014, extended abadi of Village Bawana, Delhi.

2. The facts of the case are that the respondents/plaintiffs filed the subject suit for permanent injunction claiming ownership rights in the suit land. It was pleaded that the suit land was originally owned jointly by the ancestors of the parties. It was pleaded that since the predecessor-in-interest of the respondents/plaintiffs was the half owner of the total suit land admeasuring 750 sq. yds. situated in Khasra No. 304/2014, hence the predecessor-in-interest of the respondents/plaintiffs was given possession of 375 sq. yds. of the land. Out of this 375 sq. yds. some of the land was encroached upon by some of the appellants/defendants, and therefore, respondents/plaintiffs remained only in possession of 311 sq. yds. of land, and with respect to which the subject suit was filed.

3. The appellants/defendants as per their written statement contended that the respondents/plaintiffs were not the owners of the suit land because an oral family settlement had taken place in around the year 1953-54 whereby the predecessor-in-interest of the respondents/plaintiffs gave up rights in the suit land because he got other land. Appellants/defendants claimed to be in possession of the suit land. Suit was therefore prayed to be dismissed.

4. After pleadings were completed trial court on 10.10.2002 framed the following issues:-

“1. Whether the plaintiffs is in possession of the suit property as shown red in the site plan attached with the plaint? OPP

2. Whether the plaintiffs is entitled to the discretionary relief as prayed? OPP

3. Relief.”

5. Whereas the respondents/plaintiffs examined four witnesses, appellants/defendants examined five witnesses. It is however important to note that the evidence led by the appellants/defendants was only oral evidence without the contentions in the written statement, especially of the family settlement being proved by documentary evidence, on the other hand respondents/plaintiffs filed documentary evidence to show ownership of suit land which was owned by the respondents/plaintiffs and which was done by calling the Patwari/revenue official of Village Bawana who proved the Khatauni of the suit land as Ex.PW2/1. This Khatauni shows the ownership of the persons of the land and this Khatauni showed that respondents/plaintiffs were the co-owners of the suit land to the extent of half. The Patwari, PW-2 had stated that he had brought the khasra girdawari pertaining to the year 2002-2003, however, it is noted that there is no khasra girdawari on record proved as a document.

6. At the time of admission of this regular second appeal the following substantial question of law was framed:-

“Whether the finding returned by the trial court and upheld by the appellate court with regard to holding of respondent Nos.1 and 2 being in possession of a parcel of land measuring 311 square yards Khasra No. 304/14 of Village Bawana is suffering from any perversity? If so, to what effect?”

7. The fact of the matter is that whereas the respondents/plaintiffs did lead evidence of their co-ownership of the suit land, appellants/defendants failed to prove that their predecessor-in-interest and thereafter the appellants/defendants became the sole and exclusive owners of the land comprising Khasra No. 304/2014. Accordingly, the trial court as per its judgment held that once the parties are co-owners, the respondents/plaintiffs on account of co-ownership itself were entitled