Zile Singh & Ors vs Halwant & Ors on 4 March, 2009

RSA No.4328 of 2006                              1

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                                       RSA No.4328 of 2006(O & M)
                                       Date of Decision:04.03.2009

Zile Singh & Ors.

                                                 ....appellants

                    Versus

Halwant & Ors.

                                                 .....respondents

CORAM:        HON'BLE MR.JUSTICE RAKESH KUMAR GARG


Present:      Mr.Gorakh Nath,Advocate
              for the appellants

              Mr.R.S.Chahar, Advocate
              for the respondents

                    ****

RAKESH KUMAR GARG J.

This is plaintiffs’ second appeal challenging the judgment

and decree of the Lower Appellate Court whereby appeal filed by the

defendants-respondents has been accepted and the judgment and decree

dated 10.02.2005 passed by the trial Court has been set aside resulting

into the dismissal of the suit of the plaintiffs-appellants for grant of

permanent injunction.

Briefly stated, as averred, the facts of the case of the

appellants are that they along with other co-sharers i.e.defendant Nos.6(i)

to 6(viii) are actual owners in possession as Hissedars of the land in

dispute being mortgagees. The mortgage land was not redeemed within a

period of 38 years by the mortgagers and in that way their rights of

redemption had been extinguished and the mortgagees/plaintiffs have

become owners and they are in actual physical possession of the suit land.

Defendant Nos.1 to 5 never cultivated the suit land. However, they want to
RSA No.4328 of 2006 2

take back the possession of the suit land illegally and forcibly. Despite

repeated requests, defendant Nos.1 to 5 are threatening to dispossess the

plaintiffs forcibly and illegally. Hence this suit.

Defendant Nos.1 to 5 filed joint written statement

controverting the allegations of the plaintiffs and inter alia pleaded that the

defendants were the owners in possession of the suit land. The suit land

had already been partitioned by the revenue authorities and the plaintiffs

had got no right, title or interest in the suit land. Earlier Civil Suit filed by

the plaintiffs bearing No.570 of 1991 for declaration was dismissed as

withdrawn on 22.02.1994. Defendants never mortgaged the suit land,

therefore, the question of getting the suit land redeemed, does not arise.

The plaintiffs are neither the owners nor in possession of the suit land.

Objections were also raised to the maintainability of the suit in the present

form. Dismissal of the suit was prayed.

After perusing the evidence and hearing the arguments, the

trial Court decreed the suit of the plaintiffs with no order as to costs. It is

relevant to mention here that while decreeing the suit of the plaintiffs for

permanent injunction, the trial Court recorded a finding of fact that the

present suit was neither a suit for declaration nor a suit for fore-closure nor

there was any counter claim on behalf of the contesting

defendants/appellants with regard to exercise their right to redemption and

in fact the suit was a simple suit for permanent injunction which was being

claimed by plaintiffs on the long standing possession being mortgagees,

restraining the defendants not to take the possession of the suit property

from the plaintiffs illegally and forcibly.

Feeling aggrieved by the aforesaid judgment and decree of

the trial Court, the defendants filed an appeal which was accepted by the

Additional District Judge, Sonepat vide impugned judgment and decree

dated 01.02.2006.

RSA No.4328 of 2006 3

I have heard learned counsel for the parties.

Both the Courts below have recorded a finding of fact that

the parties to the suit are recorded to be in possession of the suit land as

co-sharers in the entire land as per the revenue record and in view of this

finding of fact which is not disputed, the suit of the plaintiffs respondents for

grant of permanent injunction was not maintainable as it is settled

proposition of law that a co-sharer in the land cannot seek relief of

injunction against another co-sharer. A co-sharer is admitted to be owner

and in possession of joint holding even when he is not in possession of any

specific part. The status of a co-sharer always remains as such till the

land is partitioned. The mere fact that co-sharers have been in exclusive

enjoyment of the property cannot per se amount to ouster of any other co-

sharer and none of the co-sharer can claim adverse possession against the

co-sharer.

Thus, I find no fault in the findings of the impugned

judgment and decree passed by the Lower Appellate Court.

No substantial question of law arises.

Dismissed.

(RAKESH KUMAR GARG)
JUDGE
04.03.2009
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