Smt. Sarwan Kaur and Another vs Ram Niwas and Others

Vijender Singh Malik, J.

CMs No. 8801 and 8802-C of 2013

Delay of 317 days in re-filing and 12 days in filing the appeal is condoned for the reasons mentioned in the applications.

RSA No. 3273 of 2013

This is a Regular Second Appeal appeal brought by Sarwan Kaur, one of the defendants and Suresh Chand, legal representative of another defendant named Tek Chand challenging the judgments and decrees of the courts below, i.e. one passed by learned Additional Civil Judge (Senior Division), Jhajjar dated 15.09.2010 and the other passed by learned District Judge, Jhajjar dated 16.5.2012. Ram Niwas, respondent no. 1-plaintiff filed the suit for permanent injunction. He has claimed as under:-

The plaintiff is owner in possession of 1/8 share in the agricultural land measuring 57 kanals 4 marlas situated in the revenue estate of village Judi, Tehsil Kosli, District Rewari detailed in para no. 1 of the plaint. Earlier Smt. Phula was owner of the said 1/8 share in the suit property, which was inherited by her son Dayanand, who transferred his 1/8 share to the plaintiff by way of gift deed dated 27.03.2003. Mutation No. 1536 was sanctioned on this gift deed. The defendants are strong headed persons. They are trying to oust the plaintiff from his share in the suit property. They have no legal right to do so. The plaintiff would be irreparably injured if he is ousted from the suit property.

The suit is resisted by the defendants. They have claimed that they are owners in possession of the suit property and the plaintiff has no concern with the same. The gift deed is claimed to be forged and fraudulent document, which is not binding on the rights of the defendants. The plaintiff is denied to have any concern with the suit property in any manner.

From the pleadings of the parties, the following issues were framed by learned trial court:-

1- Whether the plaintiff is owner in possession of 1/8th share of the suit land and the defendants want to oust him from his possession? OPP

2- Whether the plaintiff is entitled for the relief of injunction? OPP

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

4- Whether the plaintiff has been stopped from filing the present suit by his own act and conduct? OPD

5- Relief.

Under issues No. 1 and 2, taken up together, the plaintiff was found to have succeeded in proving that he is owner in possession of 1/8th share in the suit property. Since the plaintiff was found to be owner in possession of 1/8th share in the suit property, the defendants were found to have no right to interfere in the peaceful possession of the plaintiff over 1/8th share in the suit property. Issues No. 1 and 2 have therefore been decided in favour of the plaintiff. On the other issues, no arguments were advanced and they have been decided against the defendants. In the result, the suit succeeded and has been decreed restraining the defendants from ousting the plaintiff from 1/8th share in the suit property.

The defendants including the legal representative of Tek Chand challenged the said judgment and decree before learned District Judge, Jhajjar, who vide judgment and decree dated 16.5.2012 dismissed the appeal leaving the parties to bear their own costs.

Learned counsel for the appellants has contended that the plaintiff has no right over the suit property. According to him, Sarwan Kaur had filed a suit on 09.09.1994 against various persons including Dayanand from whom the plaintiff claims to derive title. According to him, this suit was decreed against the defendants. According to him, the plaintiff is not in possession of the suit property.

Learned counsel for the appellants is trying to divert the attention of this court from the main issue. In the suit dated 09.09.1994 decree was passed in favour of Sarwan Kaur to the effect that mutation No. 1325 dated 07.01.1994 was illegal, null and void and that the plaintiffs are owners to the extent of 49/192 share in the land measuring 14 kanals 12 marlas. This suit was also decreed for recovery of Rs. 10,000/- against defendant no. 1, Ram Saroop. The land involved in the suit in hand is 57 kanals 4 marlas of which the plaintiff claims himself to be owner of 1/8th share. He claims to have got this share by way of gift from Daya Nand. Daya Nand was never restrained from executing the gift deed nor he was declared as not owner in possession of this land.

Though, the plea taken in the written statement by the defendants is that of denial of ownership of the plaintiff over 1/8th share in the suit property and of claiming ownership and possession over the entire property, defendant Sarwan Kaur, appellant before me, appearing as DW-1 has admitted in her cross-examination that the suit property is a joint property of the parties and the plaintiff is owner of 1/8th share in the same. Learned trial court has rightly observed that though the defendants claimed the gift deed to be a forged and fraudulent document but there was no evidence on the file produced by the defendants to prove this allegation.

In these circumstances, the plaintiff-respondent Ram Niwas is clearly proved to be owner to the extent of 1/8th share in the land measuring 57 kanals 4 marlas. He being co-sharer would be deemed to be in possession of the suit property. Every co-sharer has right to enjoy the use of the joint property and a co-sharer cannot be ousted from the enjoyment of the joint property. The defendants have been restrained from ousting the plaintiff from the suit property and I find no illegality in the judgments and decrees passed by the courts below. Hence, I find no questions of law much less substantial questions of law involved in this appeal. The appeal is, consequently dismissed in limine.