iqbal Singh and ors Vs. Jagdish Singh and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1142879
CourtPunjab and Haryana High Court
Decided OnMay-07-2014
Appellantiqbal Singh and ors
RespondentJagdish Singh and ors.
Excerpt:
cr no.559 of 2014(o&m) #1# in the high court of punjab and haryana at chandigarh. cr no.559 of 2014(o&m) date of decision:-07.05.2014 iqbal singh & ors ......petitioners.versus jagdish singh & ors......respondents. coram:- hon'ble mr.justice jaswant singh present:- mr.s.s.siao, advocate for the petitioners.*** jaswant singh, j.(oral) petitioners/plaintiffs are in revision under article 227 of the constitution aggrieved against the order dated 17.12.2013 (p-2) passed by the learned additional district judge, ludhiana whereby appeal filed by the defendants against the order dated 18.02.2013(p-1) was allowed and consequently the order passed by the learned civil judge(jr. divn.).ludhiana dismissing the application under order 39 rules 1 & 2 cpc. in the present case two co-sharers are fighting against each other. the plaintiffs/petitioners filed a suit for permanent injunction for restraining the respondents from interfering in their peaceful possession and from dispossessing them from property as mentioned in the headnote of the plaint and also from restraining the respondents from encroaching upon the property i.e.khasr.no.5/2. it was stated in the plaint that mahajan vinay respondent nos.4 & 5 purchased land measuring 4 kanals vide sale deed 2014.05.19 10:28 i attest to the accuracy and integrity of this document at chandigarh cr no.559 of 2014(o&m) #2# dated 22.07.2011 out of the disputed property and got the possession of killa no.18//10 specifically as per the sale deed, now they want to encroach the land of the petitioners/plaintiffs which fall in khasr.no.19//5/2 and also want to block the rasta of the petitioners.upon notice respondent nos.4 & 5 specifically stated that they purchased land measuring 4 kanals 0 marlas from the earlier co-sharer and as per the recital in the sale deed the possession of the land has been shown to be delivered in khasr.no.18//10. it was also averred that as per the sale deed they had purchased share of well, water channel, trees and share from tubewell and submersible motor and for this respondent nos.4 & 5 paid the amount to the vendors.it was also averred that respondents are co-sharers in the property and do not intend to encroach upon the property of the petitioners falling in khasr.no.19//5/2 as the respondents have purchased share of rasta and electric motor, therefore, they are co-sharer, therefore, they are co-sharers and in joint possession of the rasta and the electric motor. remaining averments were denied and prayer was made for dismissal of the suit as well as injunction application. after hearing learned counsel for the parties, learned trial court vide its order dated 18.02.2013 (p-1) allowed the application under order 39 rules 1 & 2 cpc. learned lower appellate court vide impugned order dismissed the same by holding that since the respondents are co.sharers in the joint land including the tubewell and the rasta in question, therefore, no injunction order can be passed against the co-sharers.learned counsel for the petitioner has vehemently argued that the learned lower appellate court has erred in law by allowing the appeal mahajan vinay 2014.05.19 10:28 i attest to the accuracy and integrity of this document at chandigarh cr no.559 of 2014(o&m) #3# filed by the respondents as it is an admitted fact that the respondets have no concern with the land in dispute which was purchased by them vide sale deed dated 10.11.2010 and 28.07.2011 from the co-sharer by the disputed land. it has further been argued that although respondent nos.4 & 5 have purchased specific khasr.numbers jasbir kaur(who was another co-sharer of the land) still they are illegally threatening the petitioner to interfere in their peaceful possession and dispossessing them from the suit property. after hearing learned counsel for the petitioners and perusing the paper book, this court is of the considered view that the present petition is devoid of any merit and the same deserves to be dismissed. a perusal of the record would reveal that the respondents have specifically denied that they intended to encroach upon the land of the petitioners falling in khasr.no.19//5/2 to block the common rasta and to possess the electric motor solely. it is not in dispute that both the parties have bought the properties from co-sharers and both of them have been put in possession subsequently. as per the sale deed of respondent nos.4 & 5, they have bought the share in tubewell, rasta as well as eletric motor along with land which is measuring 4 kanals. hence it is prima facie proved that both the parties are co-sharers as well as are entitled to the share in well, tubewell, rasta, bahi as well as trees. no co-sharer can be permitted to use a joint tubewell, or a well or rasta exclusively and all the co-sharers are entitled to enjoy the benefits of the said facilities especially when these facilities have been bought through a sale deed. moreover, it is settled position of law that no injunction can be grated against the co-sharers especially when the said facts are not in dispute. mahajan vinay 2014.05.19 10:28 i attest to the accuracy and integrity of this document at chandigarh cr no.559 of 2014(o&m) #4# in view of the facts and circumstances of the case, finding no merit in the present revision petition, the same is hereby dismissed. ( jaswant singh ) judge may 07, 2014 vinay mahajan vinay 2014.05.19 10:28 i attest to the accuracy and integrity of this document at chandigarh
Judgment:

CR No.559 of 2014(O&M) #1# IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

CR No.559 of 2014(O&M) Date of Decision:-07.05.2014 Iqbal Singh & Ors ......PetitioneRs.Versus Jagdish Singh & Ors......Respondents.

CORAM:- HON'BLE Mr.JUSTICE JASWANT SINGH Present:- Mr.S.S.Siao, Advocate for the PetitioneRs.*** JASWANT SINGH, J.(ORAL) Petitioners/plaintiffs are in revision under Article 227 of the Constitution aggrieved against the order dated 17.12.2013 (P-2) passed by the learned Additional District Judge, Ludhiana whereby appeal filed by the defendants against the order dated 18.02.2013(P-1) was allowed and consequently the order passed by the learned Civil Judge(Jr.

Divn.).Ludhiana dismissing the application under Order 39 Rules 1 & 2 CPC.

In the present case two co-sharers are fighting against each other.

The plaintiffs/petitioners filed a suit for permanent injunction for restraining the respondents from interfering in their peaceful possession and from dispossessing them from property as mentioned in the headnote of the plaint and also from restraining the respondents from encroaching upon the property i.e.KhaSr.No.5/2.

It was stated in the plaint that Mahajan Vinay respondent nos.4 & 5 purchased land measuring 4 Kanals vide sale deed 2014.05.19 10:28 I attest to the accuracy and integrity of this document at Chandigarh CR No.559 of 2014(O&M) #2# dated 22.07.2011 out of the disputed property and got the possession of Killa No.18//10 specifically as per the sale deed, now they want to encroach the land of the petitioners/plaintiffs which fall in KhaSr.No.19//5/2 and also want to block the rasta of the petitioneRs.Upon notice respondent nos.4 & 5 specifically stated that they purchased land measuring 4 Kanals 0 Marlas from the earlier co-sharer and as per the recital in the sale deed the possession of the land has been shown to be delivered in khaSr.No.18//10.

It was also averred that as per the sale deed they had purchased share of Well, Water Channel, Trees and share from Tubewell and submersible motor and for this respondent nos.4 & 5 paid the amount to the vendORS.It was also averred that respondents are co-sharers in the property and do not intend to encroach upon the property of the petitioners falling in KhaSr.No.19//5/2 as the respondents have purchased share of rasta and electric motor, therefore, they are co-sharer, therefore, they are co-sharers and in joint possession of the rasta and the electric motor.

Remaining averments were denied and prayer was made for dismissal of the suit as well as injunction application.

After hearing learned Counsel for the parties, learned trial Court vide its order dated 18.02.2013 (P-1) allowed the application under Order 39 Rules 1 & 2 CPC.

Learned lower Appellate Court vide impugned order dismissed the same by holding that since the respondents are Co.sharers in the joint land including the tubewell and the rasta in question, therefore, no injunction order can be passed against the co-shareRs.Learned Counsel for the petitioner has vehemently argued that the learned lower Appellate Court has erred in law by allowing the appeal Mahajan Vinay 2014.05.19 10:28 I attest to the accuracy and integrity of this document at Chandigarh CR No.559 of 2014(O&M) #3# filed by the respondents as it is an admitted fact that the respondets have no concern with the land in dispute which was purchased by them vide sale deed dated 10.11.2010 and 28.07.2011 from the co-sharer by the disputed land.

It has further been argued that although respondent nos.4 & 5 have purchased specific khaSr.numbers Jasbir Kaur(who was another co-sharer of the land) still they are illegally threatening the petitioner to interfere in their peaceful possession and dispossessing them from the suit property.

After hearing learned Counsel for the petitioners and perusing the paper book, this Court is of the considered view that the present petition is devoid of any merit and the same deserves to be dismissed.

A perusal of the record would reveal that the respondents have specifically denied that they intended to encroach upon the land of the petitioners falling in KhaSr.No.19//5/2 to block the common rasta and to possess the electric motor solely.

It is not in dispute that both the parties have bought the properties from co-sharers and both of them have been put in possession subsequently.

As per the sale deed of respondent nos.4 & 5, they have bought the share in tubewell, rasta as well as eletric motor along with land which is measuring 4 Kanals.

Hence it is prima facie proved that both the parties are co-sharers as well as are entitled to the share in Well, tubewell, rasta, bahi as well as trees.

No co-sharer can be permitted to use a joint tubewell, or a Well or rasta exclusively and all the co-sharers are entitled to enjoy the benefits of the said facilities especially when these facilities have been bought through a sale deed.

Moreover, it is settled position of law that no injunction can be grated against the co-sharers especially when the said facts are not in dispute.

Mahajan Vinay 2014.05.19 10:28 I attest to the accuracy and integrity of this document at Chandigarh CR No.559 of 2014(O&M) #4# In view of the facts and circumstances of the case, finding no merit in the present revision petition, the same is hereby dismissed.

( JASWANT SINGH ) JUDGE May 07, 2014 Vinay Mahajan Vinay 2014.05.19 10:28 I attest to the accuracy and integrity of this document at Chandigarh