Back
2015 Supreme(P&H) 1956
IN THE HIGH COURT OF PUNJAB AND HARYANA
BHARAT BHUSHAN PARSOON, J.
BEANT SINGH – Appellant
Versus
ATMA SINGH – Respondent
RSA No. 290 of 2014
Decided on : 19-05-2015
Advocate Appeared:
For the Appellant :Rajesh Narang, Advocate
For the Respondent:K.S. Cheema, Advocate
A co-owner in possession of a specific portion of joint holding has the right to protect the portion transferred without asserting exclusive ownership until partition, as per Section 44 of the Transfer of Property Act, 1882.
Headnote:
joint possession - land dispute - Transfer of Property Act, 1882, Section 44
Fact of the Case:
The plaintiff sought a decree for permanent injunction to protect his exclusive possession over a part of joint holding of land until partition. The defendant contested the claim, denying the plaintiff's exclusive possession and raising preliminary objections regarding the maintainability of the suit.
Finding of the Court:
The court found that the plaintiff had become a co-owner in the joint land and was in established exclusive possession of the suit land. The court held that the plaintiff was entitled to protect his possession until partition proceedings were finalized.
Issues: The issues included the plaintiff's exclusive possession, entitlement to injunction, and maintainability of the suit.
Ratio Decidendi: The court relied on Section 44 of the Transfer of Property Act, 1882, which provides that a co-owner in possession of a specific portion of joint holding has the right to protect the portion transferred without asserting exclusive ownership until partition. The court also referred to the Full Bench judgment in Ram Chander v. Bhim Singh.
Final Decision: The court reversed the findings of the first appellate court, affirmed the lower court's judgment, and decreed the suit in favor of the plaintiff.
BHARAT BHUSHAN PARSOON, J.
1. This Regular Second Appeal is directed against judgment and decree dated 18.12.2013 passed by District Judge, Hoshiarpur vide which judgment and decree dated 29.10.2010 passed by the lower court, was set aside, wherein suit of plaintiff Beant Singh, appellant herein, for seeking a decree for permanent injunction restraining defendant Atma Singh, respondent herein, from interfering in his exclusive possession over 3 Kanal 2 Marlas of land detailed and described in the head note of the plaint till partition in due course of law, had been decreed by the lower court.
2. Claim of the plaintiff-appellant in the suit was that Atma Singh, defendant-respondent, and his deceased brother Piara Singh were the joint owners of land in village Kainthan. Said Piara Singh sold 3 Kanal 12 Marlas of land comprised in 188/306, 189/307, 190/308, 309 and 733/1090 to the plaintiff-appellant for a total consideration of Rs. 15,000/- vide registered sale deed dated 3.7.1989 with ½ share of tubewell bore, engine, fan, band alongwith right of passage and water channel. It was further pleaded that exclusive possession of 3 Kanal 12 Marlas of land comprised in Rectangle No.50//4/1 (7-18) was handed over to the plaintiff-appellant. Since then, he was claiming himself to be in exclusive peaceful possession thereon. It was further pleaded by him that sugarcane and paddy crop was cultivated by him in the said land. Now after the death of Piara Singh, defendant-respondent Atma Singh purchased some land from widow of Piara Singh. The defendant-respondent was bent upon to dispossess the plaintiff-appellant from the suit land forcibly. He had also demolished the passage being used by the plaintiff-appellant thereby causing loss to him to the tune of Rs. 80,000/-.
3. The aforesaid claim of the plaintiff-appellant was contested by the defendant-respondent in his written statement wherein exclusive possession of the plaintiff-appellant had been denied, whereas it had been averred that the defendant-respondent and his wife were recorded joint owners in the suit land. It was further mentioned that Piara Singh vendor of the plaintiff had no right to sell tubewell bore, engine etc. Certain preliminary objections regarding maintainability of the suit, plaintiff having not come to the court with clean hands and having no cause of action to file the suit had also been taken. Dismissal of the suit had been sought.
4. The plaintiff-respondent in his replication had reiterated the assertions made in the plaint while controverting the stand taken by the defendant in the written statement. On pleadings of the parties, the following issues were framed on 6.2.2006:
1. Whether plaintiff is in exclusive possession of the suit land and sugarcane crop is standing in the suit land? OPP
2. Whether the plaintiff is entitled to the injunction? OPP
3. Whether the plaintiff is entitled to recover Rs. 80,000/- as damages as detailed in the plaint for removing the tubewell engine operates as alleged? OPP
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the plaintiff has not come to the Court with clean hands? OPD
6. Whether the plaintiff has no cause of action to file the present suit? OPD
7. Whether plaintiff is estopped by his own act and conduct from filing the present suit? OPD
8. Relief.
5. After receiving oral as well as documentary evidence led by the parties and providing a hearing to their respective counsel, issue Nos.1 and 2 were decided in favour of the plaintiff, whereas issue No.3 was decided against the plaintiff. Issues No.4 to 7 were decided against the defendant. Consequently, suit of the plaintiff was decreed by the lower court vide judgment dated 29.10.2010. The decree had followed.
6. The decree of the lower court was taken in appeal by the defendant-respondent. Agreeing with the claim of the defendant, reversing the judgment and decree dated 29.10.2010 of the lower court, suit of the plaintiff was dismissed by the fir
