IMPORTANT POINT
A co-owner's possession of joint property is deemed possession for all co-owners until partition, negating exclusive possession claims.

JUDGMENT :

Mrs. Ritu Tagore, J.

Being aggrieved by the concurrent findings returned against him, appellant-plaintiff has preferred this regular second appeal against the impugned judgment and decree dated 11.09.2018 passed by the learned Additional District Judge, Gurdaspur, affirming and upholding the judgment and decree dated 02.12.2017 passed by the learned Civil Judge, Junior Division Gurdaspur.

2. For the sake of convenience, parties to the lis hereinafter, shall be referred to by their original status in the suit.

3. Appellant/plaintiff instituted a suit for permanent injunction, seeking to restrain defendants/ their servants/ agents/ attorney etc., from taking forcible possession of the land measuring 4 kanal 19 marla, bearing khewat no.39/30 khatauni no. 33, khasra no. 9//24/1 (1-9) khatauni No.44 khasra no.9//26 (3-10), situated in the revenue estate of village Jahangirpur HB No. 311, Tehsil and District Gurdaspur as per Jamabandi for the year 2014-15 (referred to as the suit property).

4. Plaintiff claimed his exclusive cultivating possession on the suit property, having inherited from his late father Shri Sunder Dass. It is claimed that for the past forty years, he has been cultivating the suit property without any interference from any quarter. It is asserted that defendants have no right or title in the suit property. With intention to dispossess, they came onto the suit property with tractors and attempted to forcibly take possession of the suit property but failed. However, proclaimed to dispossess him from the suit property, that necessitated him to file the suit.

5. Defendants upon appearance filed the written statement and controverted the version of the plaintiff, besides raising objections regarding maintainability of the suit, concealment of true facts from the Court and non-joinder of co-sharers, the necessary parties. On merits, defendants denied the exclusive possession of the plaintiff on the suit property. It is stated that plaintiff is a co-sharer in the suit property along with others, including defendant No.3. By denying the remaining averments of the plaintiff, pleaded for the dismissal of the suit, being meritless.

6. No rejoinder was filed by the plaintiff to the written statement of the defendants. Since, parties were at variance, learned lower Court framed the following issues :-

“1. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP

2. Whether the suit is not maintainable? OPP

3. Relief.”

7. In order to prove its case, plaintiff appeared as PW1 and in his affidavit of evidence (PW1/A), reiterated the version of the plaint and examined Darshan Singh, Lambardar (PW-2) in support of his version. To rebut the case of the plaintiff, defendant No.1 Darshan Singh appeared as DW-1 and in his affidavit DW1/A recounted the version of his written statement.

8. After appraisal of the evidence, the learned trial Court dismissed the suit of the plaintiff. The first appeal filed by the plaintiff was also dismissed by the learned Additional District Judge, Gurdaspur, affirming the findings of the learned trial Court below.

9. Learned counsel for the appellant contends that Jamabandi entries for the year 2014-15 Ex.P-1 records plaintiff as owner in possession of the suit property. The plaintiff, while appearing as PW1 deposed that he is in cultivating possession of the suit property for the last 40 years and defendants have no right or title to interfere in his exclusive cultivating possession over the suit property except in due course of law. The defendants interfere in his possession illegally. Darshan Singh, Lambardar PW-2 supported the oral account of the plaintiff with respect to his exclusive possession on the suit property and unlawful interference of the defendants. It is argued by the learned counsel for the appellant that the Courts below have failed to appreciate the unrebutted evidence of the plaintiff and erred in dismissing his suit. It is stated that the inference and conclusions