RSA No.2295 of 2009 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on January 22,2010.
Harbans Lal - Appellant vs.
Gurdev Singh --Respondent. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
Present: Mr.Deepak Aggarwal,Advocate,Advocate,for the appellant Rakesh Kumar Jain, (Oral)
Defendant is in second appeal in a suit filed for permanent injunction by the plaintiff for restraining him from transferring, by way of Will or otherwise, an area more than his share and specific khasra numbers of land measuring 3 kanals 13 marlas.
Case set up by the plaintiff is that he is the owner of 1/8th share and defendant is owner in joint possession to the extent of ½ share of land measuring 3 kanals 13 marlas comprised in khewat No.2264, khatauni No.9886, khasra No.276 min (2-13); khatauni No. 9887, khasra No.276 min (0-10); khatauni No.9889, khasra No. 276 min (0-5) and khatauni No.9890 khasra No.276 min (0-5), situated within the revenue limits of Bathinda as per jamabandi for the year 1997-98.
The suit land measuring 3 kanals 13 marlas has come within abadi and has become very valuable. It is claimed that the suit land is in RSA No.2295 of 2009 (O&M) 2 joint possession of the parties and it is unpartitioned. The plaintiff had to file the suit because the defendant had started negotiation for transfer of the land more than his share with specific khasra numbers. In the written statement, the defendant/appellant has alleged that he is owner in exclusive possession of the suit land for more than 30 years and has constructed a boundary wall as it fell to his share in an oral partition, which took place between him and father of the plaintiff, although oral partition was not incorporated in the revenue record. Plaintiff filed replication and on the pleadings of the parties, following issues were framed:-
1. Whether the plaintiff is entitled to injunction as prayed for?OPP
2. Whether the plaintiff has no locus standi top file the present suit ?OPD
3. Whether the suit is not maintainable in the present form ? OPD
In order to substantiate his case, plaintiff himself appeared in the witness box as PW-1 and after tendering some documents closed his evidence. On the other hand, defendant examined Harinder Kalia, Deed Writer as DW-1, Anil Kumar Gupta, Handwriting and Finger Prints Expert as DW-2, himself appeared in the witness box as DW-3 and closed his evidence.
Both the Courts below have found as a matter of fact that there was no partition as alleged by the defendant because in the jamabandi for the year 1997-98 (Ex.P-1), the parties have been shown to be in joint RSA No.2295 of 2009 (O&M) 3 possession of the suit property. It was also held that though presumption of correctness is attached to the entries made in the jamabandi, but they are amenable to rebuttal, and as no documentary evidence has been led to rebut the entries made in the jamabandi, it was presumed to be correct. It was also held that in terms of Section 111 to 123 of the Punjab Land Revenue Act, private partition has to be reflected in the revenue record and since this partition has not been reflected in the revenue record, therefore, it cannot be believed. In this regard, decision of this Court in the case of Darbara Singh and another Versus Gurdial Singh and another 1994 PLJ- 25 has been relied upon in which it was held that as per Section 123 of the Punjab Land Revenue Act, when a partition takes place without intervention of revenue officials, then it has to be brought to the notice of the revenue officers for affirmation.
The learned lower Courts have also disbelieved the document of partition on the ground that in the written statement, the defendant had pleaded oral partition ,whereas photo copy of memorandum of partition was specifically placed on record without giving any explanation about the loss of original memorandum of partition and without seeking the permission of the Court to lead secondary evidence. In the present appeal, learned counsel for the appellant has raised the question of law as to whether a co-owner can seek injunction against a co-owner. I am afraid this question of law cannot be raised by the appellant because the case set up by him is that the plaintiff is not co- owner as the property in dispute has already been partitioned about 30 years ago, which though the plaintiff has miserably failed to prove by RSA No.2295 of 2009 (O&M) 4 leading any cogent evidence.
In view of the above, I do not find any merit in the present appeal and the same is hereby dismissed in limine, however, without any order as to costs.
January 22,2010 (Rakesh Kumar Jain) RR Judge