IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL  NO. 5905   OF 2008

[Arising out of SLP(C) No. 3749/2008]

BALWANT SINGH AND ANR. ... APPELLANT(S)

:VERSUS:

TEJ SINGH AND ORS. ... RESPONDENT(S)

O R D E R

Leave granted.

Plaintiffs in a suit for grant of a decree for permanent injunction restraining

the  respondents herein from interfering with the ownership and possession of the

land in the suit, are before us herein.  

The said suit was decreed. The First Appellate Court, however, reversed  the

said judgment and decree opining that

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the defendants-respondents had proved their title to the suit lands, holding:

“It  is  settled principle  that  one co-khatedar cannot  get  injunction against other co-khatedar till  the time it is not proved that partition of  their  shares  has  taken  place  and  they  occupy  their  respective shares  on  the  basis  of  any  Exchange  Deed.  Admittedly appellants/defendants No.1 & 2 and plaintiffs/respondents No.1 & 2 are joint Khatedars on the basis of the copy of the Khatoni available on record. No any such document is available on record which can reflect  that  plaintiff/  respondents  No.  1  & 2 are  in  possession  on land,  in question.  The document No. 11C, copy of the Khatoni of 1407 Fasli which is available on record, from the perusal of same it does nowhere becomes evident that the said entry of names has been made on the land area 1 Nali 3 Mutthi of land No. 1662. Admittedly, each Khatedar of joint Khata has got the right to use land of his respective share and restraining him by any injunction would not be held justified & reasonable. No any such documentary evidence has been produced on record that in Khata No.  33 or the land exists in Land No. 1662 as to where the land of plaintiffs/ respondents No. 1 & 2 is situated.”    

Aggrieved by and dissatisfied with the order of the First Appellate Court the

appellants preferred a second appeal before the High Court.  

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The High Court formulated the following substantial questions of law:

“1.  Whether  learned  appellate  court  has  wrongly  and  in  his

judgment and decree that learned trial court assumed the title and possession of appellants only on the basis of oral evidence when the respondents  never  objected  the  construction   of  house  and possession of appellants in disputed land?”

2. Whether the respondents No. 1 and 2 in spite of enjoying their entire land of their share can interfere in the land of appellants by saying that they are co-sharer of the land in dispute?

3. Whether the basis of defence put by the respondents that they are owner  in  possession  of  the  disputed  land  by  exchange  deed  is sustainable in the light of section 118 of Transfer of Property Act or 161 of U.P.Z.A. Act?

By reason of the impugned judgment, stating that the findings of the First

Appellate Court were findings on fact, the  High  Court opined  that no substantial

question of law

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arose for its consideration. On the said finding, the second appeal has been dismissed.

Mr.  Rawat,  learned counsel  appearing  on behalf  of  the appellants  would

submit that the First Appellate Court as also the High Court failed to notice that the

defendants-respondents had stated in their evidence that their land is about 70 meters

away from the land of the appellants and they were not aware of the exact location of

the land.   

Both the Courts below, however, proceeded on the basis that the plaintiffs

failed to prove their respective claims over the land in suit, by reason of deeds of sale

purported to have been executed in their favour by others. It is also  not correct to

contend that the identity of the suit land itself was in question.

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We are, therefore, of the opinion that the High Court has rightly arrived at a

finding that no substantial question of law arose for its consideration. The appeal, is

therefore, dismissed.

..........................J (S.B. SINHA)

..........................J   (CYRIAC JOSEPH)    NEW DELHI, SEPTEMBER 29, 2008.