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2014 Supreme(P&H) 1392
PUNJAB & HARYANA HIGH COURT
Sneh Prashar, J.
Jangir Singh - Appellant
Versus
Naranjan Singh and Ors. - Respondent
R.S.A. No. 289 of 1986
Decided On : 30-09-2014
For the Appellant :Harminder Singh, Advocate
For the Respondents:Vinod Kataria, Advocate
Co-sharers in exclusive possession of joint property for a sufficient period can raise construction, and the only remedy for co-sharers is to seek partition of the joint land.
Headnote:
Shamlat Patti - Land Dispute - Specific Relief Act - [Section 41 of the Specific Relief Act] - The court discussed the plaintiffs' claim of being co-sharers in the suit land and the defendant's exclusive possession of a portion of the land. The court highlighted the principle that co-sharers in exclusive possession of joint property for a sufficient period can raise construction, and the only remedy for co-sharers is to seek partition of the joint land. The court also referenced Section 41 of the Specific Relief Act, emphasizing that the plaintiffs' suit for a permanent prohibitory injunction was not maintainable.
Fact of the Case:
The plaintiffs sought a permanent injunction against the defendant, claiming that the suit land belonged to Shamlat Patti and was allotted to Ghania Ka Thola during a partition. The defendant contested, asserting his ownership and exclusive possession of a portion of the land.
Finding of the Court:
The court found that the plaintiffs failed to provide substantive evidence to establish their claim, and the defendant's exclusive possession entitled him to raise construction on the land. The court held that the plaintiffs' suit for a permanent injunction was not maintainable.
Issues: Dispute over ownership and possession of the suit land, entitlement to seek permanent injunction, and the applicability of Section 41 of the Specific Relief Act.
Ratio Decidendi: Co-sharers in exclusive possession can raise construction, and the only remedy for co-sharers is to seek partition of the joint land. The plaintiffs' suit for a permanent prohibitory injunction was not maintainable.
Final Decision: The appeal succeeded, and the judgment and decree dismissing the suit of the plaintiffs were restored and upheld.
1. This was an appeal preferred by Jangir Singh son of Hazara Singh, appellant-defendant impugning the judgment and decree dated 21.12.1985 granted by learned Additional District Judge, Faridkot reversing the judgment and decree dated 03.08.1982 passed by Sub Judge 1st Class, Moga, by virtue of which the suit for permanent injunction filed by plaintiffs-respondents Naranjan Singh and others was dismissed. Precisely, the case of the plaintiffs was that the land bearing Khasra No. 4 and "Tukra" portion No. 501, situated in the area of village Jhandiana Sharki red line, Tehsil Moga (hereinafter referred to as the "suit land") belonged to Shamlat Patti which was partitioned by Collector, Moga vide order dated 23.05.1982. As a result of the partition, the suit land was allotted to Ghania Ka Thola. Dayal Singh etc. were the sons of Ghania Singh. A pedigree table of Shri Ghania Singh was mentioned according to which they (plaintiffs No. 1 to 3, namely, Naranjan Singh, Chanan Singh and Inder Singh) were sons of Hamam Singh son of Dayal Singh son of Ghania Singh and plaintiff No. 4 Ujagar Singh was son of Maghi Singh son of Sajjan Singh grand son of Ghania Singh.
The plaintiffs claimed that Nand Singh, Mewa Singh, Kehar Singh and Sardara Singh sons of Sampuran Singh son of Sajjan Singh, grand son of Ghania Singh, were co-sharers in the suit property and they sold their share to Natha Singh son of Bila Singh, who further sold the share to Jangir Singh-defendant.
Alleging that Jangir Singh was now bent upon to raise construction on the suit land whereas he had no right to do so until the suit land was partitioned between the co-sharers, the plaintiffs filed the present suit seeking a permanent injunctive order against him.
2. Jangir Singh-defendant appeared and contested the suit. He pleaded that Natha Singh son of Bila had sold a plot measuring 12 Marlas out of the suit land to his father Hazara Singh vide registered sale deed dated 6th January, 1947. Thereafter, Nand Singh, Mewa Singh and Kehar Singh sons of Sampuran Singh sold another land measuring 9 Marlas out of the suit land to him and his sons. In addition to the same, he also purchased a house from one Kartar Singh constructed in an area of 26 Marlas. A plot measuring 3 Kanals owned and possessed by him was also adjoining to the suit land and in that manner lie was in possession of land measuring about 5 Kanals at the disputed site. He had already constructed a residential house at the said site by spending approximately ` 1 Lac from his pocket and had been residing in the house alongwith his sons and other members of the family. According to him, the plaintiffs had no concern whatsoever with the land in his possession.
The defendant added that being owner in possession of land measuring 12 Marlas out of the suit 'and towards the Western side and the plaintiffs having no concern whatsoever with the same, he has every right to raise construction on the land in his possession. He denied that the suit land was ever part of Shamlat Patti or belonged to the proprietors of the village. The description of the suit land given in the plaint as well as the site plan filed by the plaintiffs was disputed by him and dismissal of the suit was prayed.
3. On the rival contentions of the parties, issues were settled and both the parties led oral and documentary evidence to substantiate their pleadings.
4. Having considered the contentions raised on both sides, learned trial Court coming to the conclusion that if the plaintiffs claimed to be cosharers in the suit land, the only remedy available to them was to seek partition of the suit land and that they were not entitled to the relief of injunction claimed by them, dismissed the suit of the plaintiffs vide judgment and decree dated 03.08.1982. However, the appeal preferred by the plaintiffs was allowed by learned Additional District Judge. Faridkot vide judgment and decree dated 21.12.1985 and the judgment and decree passed by learned
