CHANAN SINGH Vs. JASWINDER SINGH

JUDGEMENT

(1.) This is a regular second appeal that has been filed by the appellant-plaintiff No.1 (in short 'the appellant') seeking to challenge the judgment and decree dated 03.03.2011 passed by the lower court whereby, the suit filed by the appellant was dismissed, as well as judgment and decree dated 24.04.2012 passed by the first Appellate Court whereby, the appeal filed by the appellant was also dismissed.

(2.) In brief, the facts of the case are that the appellant along with respondents No.6 to 10 herein filed a suit that they along with respondent No.5-defendant No.5 (in short 'respondent No.5') are co-owners of the suit land (as detailed in the headnote of the plaint) situated in village Khurampur, Tehsil Phagwara as per jamabandi for the year 2003-04. It was averred that respondent No.5 sold his share in the suit land vide sale deed dated 31.12.2007 to respondents No.1 to 4-defendants No.1 to 4 (in short 'respondents No.1 to 4'). It was submitted that respondent No.5 has sold his share in the suit land along with one Khasra number 357/8-0, which is situated at a distance of 8 acres from suit land and lying on the other side near Shamshan Ghat of the village, but respondents No.1 to 4 took forcible, illegal and wrong possession on the main Hoshiarpur road, Khurampur, Tehsil Phagwara of the land bearing Khasra No.870/489/3-4, 872/490/3- 4M, 492/9-0, 491/4-14. It was alleged that respondents No.1 to 4 are threatening to sell, alienate the specific Khasra number of land falling in their share and also beyond their share to some other persons without effecting partition by metes and bounds. With these allegations, the appellant and respondents No.6 to 10 claimed the relief of permanent injunction restraining respondents No.1 to 5 from taking forcible possession of the suit land, as the property has not been partitioned by metes and bounds.

(3.) Upon notice, respondent No.1 to 4 appeared and filed their written statement. Apart from taking the preliminary objections as to the maintainability, cause of action, locus standi etc., it was submitted that appellant and his brothers are co-owners of the suit land and the suit property has been shown as joint in the revenue record, however, the parties were in their respective possession of the land as per their shares. It was admitted that respondent No.5 had sold all his share in the suit land vide sale deed dated 25.12.2007 to them. It was averred that respondent No.5 was in possession of specific portion over the suit land and delivered the specific possession to them and also attached a site plan with the sale deed to this effect. It was claimed that respondents No.1 to 4 have raised a boundary wall around the said area and the same is in their exclusive possession. It was submitted that respondents No.1 to 4 are entitled to retain possession of their specific portion in the suit land. Remaining averments of the plaint were denied. However, upon notice respondent No.5 did not turn up and he was proceeded against ex parte.