Surat Singh vs Puran Singh and Others

Harjit Singh Bedi, J.—The petitioner, who is the defendant in the suit, is the real brother, of the respondent who is the plaintiff in that suit. The facts of the case are that the petitioner and the respondent inherited 134 kanals 4 marlas of land in equal share from their father. The respondent thereafter exchanged 41 kanals 9 marlas of land with 105 kanals 11 marlas belonging to one Pala Singh. On an application for partition having been made to the Assistant Collector, an order for the partition of the joint khata was made on 18.8.1988. The petitioner thereafter approached the Collector, Jalandhar, who vide his order dated 8.1.1989 held that since the exchange of 41 kanals 9 marlas of land had taken place from the joint holding, the mode of partition was also to be framed keeping in view the entire land including the land taken in exchange. The respondent aggrieved by the order of the Collector approached the Commissioner and thereafter Financial Commissioner but received no redress. It is the conceded case of the parties that no writ petition was filed thereafter against the order of the Financial Commissioner. The respondent, however, filed a civil suit in the Court of the Sub Judge IInd Class, Jalandhar, seeking a declaration that he suit land, particularly the portion exchanged with Pala Singh, was not subject to partition as he was in exclusive possession thereof and that the petitioner could if at all claim half share only out of the 134 kanals 4 Marlas of land. Along with the civil suit an application under Order 39, Rules 1 and 2, Civil Procedure Code, was also filed praying that the petitioner- defendant be restrained from dispossessing the plaintiff from the property in dispute till the disposal of the suit. The trial Court declined the injunction holding that as the transfer of 41 kanals 9 marlas of land was from the joint holding of the parties to the suit, the area of 105 kanals 11 marlas of land from Pala Singh would also accrue to the common pool and would be subject to partition. It was also noticed that the revenue authorities had already decided the case against the respondent upto the Financial Commissioner level. Aggrieved by the order of the trial Court the respondent preferred an appeal before the Additional District Judge, Jalandhar, who reversed the order aforesaid and restrained the petitioner from getting the land partitioned till the disposal of the suit. Aggrieved by the aforesaid order, the present revision petition has been preferred by the defendant-petitioner.

Mr. P.N. Aggarwal, learned counsel appearing for the petitioner , while supporting the judgment of the trial Court has argued that once an exchange had taken place from the joint holding, the accrual of land in exchange thereof would also be to the joint holding of the co-sharers. For this proposition he has relied on Chhota Singh v. Addl Director Consolidation of Holdings Punjab and Anr. 1991 P.L.J. 535. He has also urged, placing reliance on the Full Bench of this Court in Bhatu v. Ram Sarup 1981 P.L.J. 204 that a co-owner has an interest in the whole property and also in every parcel of it irrespective of the fact whether one co-owner is in possession of a larger portion or not. He has finally argued that in view of the orders of the revenue authorities there was no prima facie case in favour of the respondent and that in any case, the balance of convenience lay with the petitioner.

Mr. L.K. Sood, learned counsel for the respondent has however urged that as a question of title between the parties was yet to be decided, it was appropriate that the interim order of the Additional District Judge be maintained. He has in support of his argument relied on Kidar Singh alias Kidara and Anr. v. Karam Singh 1989(1) Rev. L.R. 126.

I have heard the learned counsel for the parties and find that this petition deserves to succeed. In Chhota Singh''s case, it has been clearly held while dealing with a similar situation that if the khata of the parties was joint prior to the exchange of land, then the exchanged land which came into the hands of the parties also fell into the joint khata and the partition had to be effected on that basis keeping in view the entire Jand that was now a part of the joint holding. This argument of Mr. Aggarwal also finds support from the ratio of the Full Bench of this Court in Bhartu''s case (supra) in as much as every co-sharer was a joint owner of every parcel of the joint holding and if by an exchange some land came into the joint holding, the assertion of one of the share holders that this was his exclusive share, was not warranted. In view of what has been stated above, it would be clear that once an exchange had taken place from the joint holding any accrual of land in exchange thereof would also come into the entire joint holding. Mr. Aggarwal''s final argument that there was no prima facie case or balance of convenience in favour of the respondent is also to be accepted. Prima facie it has been found by the revenue authorities that the petitioner was entitled to partition of the entire holding and in that eventuality the mere fact that a suit had been filed would not indicate a prima facie case in favour of the respondent. Moreover, should the civil court find in favour of the plaintiff, the status quo ante can easily be restored.

The judgment cited by the learned counsel for the respondent has no applicability on the facts of the case and does not require any further elaboration.

For the reasons recorded above, the present petition is allowed. The judgment of the Addl. Distt. Judge dated 11.1.1992 is set aside and that of the trial Court restored and the application for interim injunction filed under Order 39, Rules 1 and 2 Civil Procedure Code, is dismissed but with no order as to costs.

The parties are directed to appear before the trial Court on 6.9.1993.