Balwant Singh &
ANR. Vs. Tej Singh & Ors.  INSC 1657 (29 September 2008)
JURISDICTION CIVIL APPEAL NO. 5905 OF 2008 [Arising out of SLP(C) No.
3749/2008] BALWANT SINGH AND ANR. ... APPELLANT(S) :VERSUS:
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 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.
The High Court
formulated the following substantial questions of law:
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 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
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.
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