MOHINDER SINGH Vs. PALWINDER SINGH

JUDGEMENT

(1.) This Regular Second Appeal is directed against judgments and decrees dated 1.3.2007 and 10.3.2009 passed respectively by the Additional Civil Judge (Senior Division), Gurdaspur (hereinafter described as `the trial Court') and the Additional District Judge ( Adhoc), Fast Track Court, Gurdaspur (referred to hereinafter as `the first appellate Court') whereby the suit and the appeal of the plaintiff-appellant have been dismissed. The plaintiff- appellant sought a decree of permanent injunction restraining the defendants- respondents from interfering in his .... peaceful possession over the land measuring 21 kanals 14 marlas as fully detailed in the head note of the plaint. It was averred by the appellant that his father-Surain Singh was co-sharer to the extent of 4/5th share in the land measuring 89 kanals 14 marlas. The appellant had pleaded that his father had filed a suit for joint possession and the same was decreed by the Court of Additional Civil Judge (Senior Division), Gurdaspur vide judgment and decree dated 12.9.1997 and it was held therein that Surain Singh was co- sharer in the suit property to the extent of 4/5th share. It was further pleaded that Puran Singh and others, who were defendants in that suit, filed an appeal against the said judgment and decree which was dismissed by the Additional District Judge, Gurdaspur vide judgment & decree dated 6.12.2000 upon which an appeal was preferred by them before this Court which is pending.

(2.) It was then pleaded that the entire costs of the previous litigation and the land measuring 21 kanals 14 marlas which was detailed in the head note of the plaint, was given to the appellant during family settlement and thereafter,he was in actual physical possession of the same. The appellant had averred that his father-Surain Singh had executed a Will on 7.4.1998 bequeathing the entire land including the land which was subject-matter of the dispute in the civil suit filed earlier. Surain Singh was stated to have died on 7.6.2000 and thereafter, on the basis of inheritance, the appellant became the owner in possession of the suit property. The appellant had alleged that the respondents were claiming that they had purchased land measuring 5 kanals 19 marlas from Harbhajan Singh son of Surain Singh, i.e., 1/5th share of land measuring 89 kanals 24 marlas, whereas Harbhajan Singh was not in possession of any land and the land measuring 21 kanals 14 marlas was in his (appellant's) exclusive possession. It was further alleged that the respondents by setting up sale deed dated 9.12.2004 were threatening to take forcible possession of land measuring 21 kanals 14 marlas. The appellant had pleaded that since the alleged sale in favour of the respondents had taken place during the pendency of the litigation which is pending before this Court, the same was hit by the principle of lis pendens.

(3.) The respondents took up the plea that they were bona fide purchasers from Harbhajan Singh son of Surain Singh, who is real brother of the appellant and after the death of Surain Singh, the appellant became co-owner and the suit for permanent injunction against the other co-sharers was not maintainable. It was pleaded that 5 kanals 19 marlas of land was purchased vide sale deed dated 9.12.2004 and on the basis of this, they had stepped into the shoes of Harbhajan Singh and had become co-sharers. It was averred that Regular Second Appeal No.1278 of 2001 which is pending in this Court also included the suit property and, therefore, the subsequent suit was not maintainable. It was, however, admitted that Surain Singh was co-sharer to the extent of 4/5th share in the land measuring 89 kanals 14 marlas, which fact has also to be conclusively determined as the dispute is still pending by way of the Regular Second Appeal. It was pleaded that since the dispute is pending, the appellant had the remedy of approaching this Court, but, could not file the instant suit. It was averred that mutation no.5721 regarding the estate of Surain Singh was sanctioned in favour of the appellant, Harbhajan Singh and Joginder Singh in equal shares and said Harbhajan Singh had sold the suit property by a valid sale deed dated 9.12.2004 and the respondents were in possession of the same. The plea of family settlement as raised by the appellant to claim ownership over 21 kanals 14marlas of land was denied.