JUDGMENT

Sanjay Vashisth. J. (Oral)

Appellant-Kaur Singh has filed present Regular Second Appeal impugning the judgments and decree passed by the Courts below, whereby, suit filed by the appellant herein (plaintiff ) for seeking a decree of permanent injunction has been dismissed by recording the concurrent findings.

2. As per pleaded case of the plaintiff, defendant No.l-Harbans Singh was owner of 41 kanal 14 maria of land as per Jamabandi 2002-03, which is part of suit land 217 kanal 18 maria. The said suit land is in possession of the appellant/plaintiff and his brothers Gurcharan Singh, Jagjit Singh as co-sharers. Defendant No.l is also the grandson of Mai Singh, grandfather of plaintiff and thus, they are related to each other.

3. On 23.08.1995, defendant No.l entered into an agreement to sell with the plaintiff for selling out 16 kanal and 14 maria of his share in land at the rate of Rs.2,70,000/- per acre. An amount of Rs.2 lacs was paid by the plaintiff as earnest money and the target date was fixed as 15.11.1995.

Defendant No.l again, entered into an agreement to sell for selling out his remaining land to the appellant/plaintiff vide agreement to sell dated 13.12.1997 at the rate of Rs.2,70,000/- per acre and an amount of Rs.l lac was paid by the plaintiff as earnest money, however, this agreement was pleaded to be an oral sale agreement and no target date for registration of the sale deed was fixed.

4. It is admitted case of the plaintiff that never any suit for seeking a decree of specific performance of act was instituted. However, on 28.11.2005, (after about 10 years of the first agreement to sell), suit for seeking a decree of permanent injunction was instituted by the plaintiff (appellant herein).

5. Courts below, have given concurrent findings on the facts as well as law. It has been held that remedy available with the plaintiff was of filing of a suit for specific performance of act and not the injunction suit, and suit is dismissed for more than one reason:-

i) Court has held that admittedly, defendants are the co-owners/co-sharers in the land, and injunction cannot be granted against the other co-sharer.

ii) Remedy available was by way of filing suit for specific performance of act.

iii) Court has also held that once, ownership of the defendants (contesting defendant) is not disputed by the appellant-plaintiff, he cannot be deprived of his right of alienating the land.

6. While addressing the arguments, counsel for the appellant herein (plaintiff) submits that on the aspect of his possession over the land, the relief of permanent injunction could be granted in his favour.

7. This Court has gone through the reasoning given in paragraph 13 of the judgment of learned trial Court which reads as under:-

"13. The plaintiff also seek to restrain the defendants from forcibly dispossessing him from the suit properly. In this regard, reference has been made to the Khasra Girdawari entries and other revenue record, but the plaintiff himself admits possession of the defendants as per agreement Ex.P5 and revenue record produced in the form of Jamabandi Ex.Pl also does not indicate the plaintiff to be in possession of any part of the suit land measuring 41 kanal 14 maria. If at all, Khasra Girdawari entries were subsequently corrected in the name of the plaintiff, it was incumbent upon the plaintiff to prove such revenue record vide which the correction of Khasra Girdawari entries was made. But, Khasra Girdawari entries do not indicate any rapat to this effect and as such, same do not establish the possession of the plaintiff. Even otherwise, by admission of the plaintiff, the defendants are co-sharers and in this regard law is well settled that no injunction