ASHOK BANSAL AND ORS. Vs. GURDAS AND ANR.

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 11th September, 2001 passed by the Additional District Judge (I) Panchkula dismissing the appeal of the plaintiff -petitioners filed against the order dated 7th June, 2001 passed by the Additional Civil Judge (Senior Division), Panchkula. The Civil Judge vide his order dated 7th June, 2001 has dismissed the application of the plaintiff -petitioners filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (for brevity 'the Code') filed in Civil Suit No. 133 of 2001.

(2.) BRIEF facts necessary for the decision of the revision petition are that the plaintiff -petitioners filed a suit for declaration to the effect that crop entry of March, 2000 in favour of the defendant -respondents is illegal, null and void and for further declaration that the plaintiff -petitioners are owner in exclusive possession of the suit land. In the alternative, a prayer was made for the declaration that the plaintiff and defendants are co -shares with the plaintiffs being in exclusive possession of the suit land subject to partition with a consequential relief of injunction restraining defendant -respondents their transferee etc, from creeling any road or raising any construction, without getting the same partitioned, would prejudice the rights of the plaintiff -petitioners. Alongwith the suit an application under Order 39 Rules I and 2 of the Code was also filed praying for ad interim injunction to restrain defendant -respondents from raising any construction or/and interfering in their peaceful possession of the suit Sand. The trial Court after a detailed; discussion came to be conclusion that the case set up by the plaintiff -petitioners that they were in exclusive possession of Khasra No. 243/157 measuring H2 bighas 5 biswas on the basis of three sale deeds dated 6th October, 1990, 15th November, 1990 and 16th November, 1990 was not supported by the copies of the sale deeds placed on record. The sale deeds in unequivocal terms contain a stipulation that the plaintiff -petitioners had purchased a share out of the khasra number and the sale is not in respect of specific khasra number. Therefore, the land in dispute is in the joint holding. A copy of the mutation sanctioned in favour of the plaintiff -petitioners was also considered by the trial Court and it was held that the mutations are not a record of right which is maintained only for fiscal purposes nor the mutation establishes the possession of an individual. The other document considered by the trial Court was the entry in the khasra Gir -dawari which showed that there was only one entry in favour of Rameshwar Dass of the year 1985 one of the vendors. However, on the contrary the trial Court reached the conclusion that since the year 1990 Smt. Chinder Kaur, one of the vendor and the respondent was recorded to be in cultivating possession of the suit land from 2000. Therefore, the trial Court reached the conclusion that the plaintiff -petitioners failed to prove their exclusive possession over the suit land bearing Khasra number 243/157. The trial Court also considered that the plaintiff -petitioners had earlier instituted a suit for permanent in -, junction, against Lal Chand Bansal, predecessor in interest of defendant -respondents in respect of the suit land wherein application for ad interim injunction was dismissed. Even the report of the Local Commissioner showed that none of the parties were able to state the exact position of the boundaries of the relevant Khasra number of the suit land and on the spot there was a room constructed by the defendant -respondents. The trial Court, therefore, dismissed the application. On appeal to the Additional District Judge, the order passed by the trial Court was affirmed and the appeal dismissed on 11th September, 2001.

(3.) SH . Manmohan Singh, learned Senior counsel has argued that until and unless effective partition has taken place it is not impermissible to transfer the proprietary rights exclusively in respect of a particular khasra number. He has placed reliance on a Full Bench judgment of this Court in the case of Bhartu v. Ram Sarup, 1981 P.L.J. 204 and a Division Bench judgment of the Labour High Court in the case of Sukhdev v. Parsi and Ors., (1941)43 P.L.R. 626. He has also placed reliance on the case of Ram Niwas v. Jain Ram alias Tej Ram, 2000(3) R.C.R. 738 and the case of Bachan Singh v. Swaran Singh . According to the learned counsel a co -sharer who is in exclusive possession of a joint khata can transfer that portion subject to adjustment of the rights of the other co -sharers therein at the time of partition. According to the learned counsel, the rights of the other co -sharer will be sufficiently safeguarded if they are granted a decree by giving them a declaration that possession of the transferees in the land in dispute would be that of a co -sharer subject to adjustment at to time of partition. The precise argument of the learned counsel is that a co -sharer can still claim exclusive possession in the land if the land is transferred to the co -sharer exclusively subject to adjustment at the time of partition. Therefore, according to the learned counsel once the plaintiff -petitioners are considered to be co -sharer and in exclusive possession of Khasra No. 243/157 then it cannot be claimed that they are not entitled to interim relief restraining the defendant -respondents from raising any construction or resorting to any type of digging or interfering with the possession of the plaintiff -petitioners. Sh. Manmohan Singh, learned Senior counsel has further submitted that in the mutation Annexure A/8 the name of Rameshwar Dass has been mentioned and in An -nexure A/9 again the name of Rameshwar Dass figures for the year 1984 -85. He has submitted that the Courts below have mis -read the Annexures A/8, A/9 and A/10.