Mohinder Singh and Others vs Banto and Others

Surya Kant, J.—This Regular Second Appeal is preferred by the defendants against whom suit for permanent injunction to restrain them from interfering or dispossessing the respondent-plaintiff from the land in dispute though was dismissed by the learned Sub Judge 1st Class, Pathankot vide judgment and decree dated. 19.10.1983 but has been decreed by learned Additional District Judge, Gurdaspur vide impugned judgment and decree dated 04.04.1985. The case of the respondent-plaintiffs was that the land in dispute measuring 307 kanal 17 marlas situated in village Estate of Narainpur, Tehsil Pathankot is Shamlet Deh Hasab Rasab Khewat and it was in their exclusive possession and that the appellants-defendants have no right to interfere in the peaceful possession of the formers. The appellants contested the suit and claimed joint possession of the suit land to the extent of half share alongwith respondents-plaintiffs. They relied upon order dated 17.05.1966 (Ex. D-2) passed by the Collector, Gurdaspur, besides certain entries in the revenue record comprising Fard Barad (Ex. D-1).

The trial Court framed the following issues:--

"1. Whether the plaintiffs are owners in possession of the suit land? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the plaintiffs are entitled to the injunction prayed for? OPP

Relief."

The trial Court while deciding issue No. 1 held that the respondents-plaintiffs could not prove their exclusive possession, rather appellant No. 1 established himself to be a co-sharer alongwith plaintiffs, hence, the respondents were not entitled to injunct the appellants. On an appeal preferred by the respondents, the First Appellant Court while dealing with issue No. 1 has held that as the land in dispute is Shamlet Deh Hasab Rasab Khewat and is in exclusive possession of Smt. Banto and other respondent-plaintiffs, therefore, the appellants have no right to interfere with their possession. It further observed that "all that they can claim is partition of shamlat deh". Consequently, the appeal preferred by the respondents-plaintiffs was allowed and the appellants were restrained from interfering from possession.

This Court vide order dated 05.11.1985 directed the parties to maintain status quo regarding possession till further orders. That interim arrangement is operative till date.

The substantial question of law that arises for consideration in this appeal would be whether it is necessary for the civil court to return a finding on ownership of the land in a simplicitor suit for permanent injunction and if so, whether civil Court could determine the title dispute with respect to the nature of land, referred to above?

On hearing learned counsel for the parties and on perusal the judgments passed by the courts below, I am of the considered view that since the courts below have concurrently held that the suit land was Shamlet Deh Hasab Rasab Khewat, the only appropriate recourse for the parties would have been as rightly observed by the First Appellate Court also, to seek its partition, if so permissible in law. The incidental issues, if any, arising for consideration, can be adjudicated by the revenue Court of competent jurisdiction. Since the plea of being co-sharers in the suit land has been taken by the defendants-appellants, they shall be at liberty to seek partition of the suit land, if already not applied for by any of the parties, and if such an application is moved by them, the revenue Court would decide the same expeditiously but not later than six months from the date of its institution. The revenue Court shall held the proceedings, if need be, on weekly basis. The interim order directing the parties to maintain status quo shall continue to operate till the above stated proceedings are decided by the Revenue Court.

This order shall be subject to the caveat that if in the proceedings initiated at the instance of the Gram Panchayat or any other party, the subject land was/is found to be shamlat deh vested in the Gram Panchayat and not the proprietors, this order shall have no bearing on such findings. The observations made by the trial Court or the First Appellate Court in respect of the title or ownership of the land shall also have no effect whatsoever on the proceedings permitted to be initiated. The appellants shall move the partition application within a period of two months from the date of receipt of certified copy of this order failing which their appeal shall be deemed to have been dismissed. The judgment and decree dated 04.04.1985 passed by the First Appellate Court and also the observations and findings returned by both the courts to the extent noticed above, stand modified.