Civil Revision No. 5854 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 5854 of 2008 (O&M) Date of decision: 19.11.2009 Bhupinder Singh ......petitioner Versus Harjinder Kaur and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Sandeep Arora, Advocate. for the petitioner. Mr.Harnam Singh, Advocate, for the respondents. **** SABINA, J. Plaintiffs-respondents filed a suit for permanent injunction restraining the defendant from interfering in their peaceful possession. Along with the suit, an application was filed under Order 39 Rule 1 and 2 of the Code of Civil Procedure ('CPC' for short). The said application was allowed by the trial Court vide order dated 22.8.2007. the order passed by the trial Court was upheld in Civil Revision No. 5854 of 2008 (O&M) 2 appeal by the Additional District Judge (Adhoc), Patiala vide order dated 8.10.2008. Hence, the present revision petition has been filed under Article 227 of the Constitution of India by the defendant. Learned counsel for the petitioner has submitted that as per the revenue record, the parties were in joint possession of the suit land and hence, no injunction could be granted against a co- sharer. Learned counsel for the respondents, on the other hand, has submitted that the plaintiffs were in possession of the suit land and hence, they were entitled to protect their possession. After hearing learned counsel for the parties, I am of the opinion that the present revision petition deserves to be allowed. Admittedly, as per the revenue record, the parties are in joint possession of the suit land. It has been held by this Court in the case of Sant Ram Nagina Ram vs. Deva Ram Nagina Ram and others AIR 1961 PB 528 as under:- “(1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of joint property by one co-owner, is in the eye of law, possession of all even if all but one are actually out of possession. (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on Civil Revision No. 5854 of 2008 (O&M) 3 behalf of all. (4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co- owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other. (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. (6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition. (8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. Civil Revision No. 5854 of 2008 (O&M) 4 9. Where a portion of the joint property is by common consent of the co-owners reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered. Case law reviewed.” Thus, a co-sharer cannot seek an injunction against the other co-sharer with regard to the property jointly owned and possessed by them. Learned counsel for the respondents has failed to substantiate his plea that the plaintiffs are in exclusive possession of the suit land. As per the revenue record, placed on the file by learned counsel for the respondents, the parties are in joint possession of the suit land. The findings arrived at by the Courts below on the issue of prima facie case and balance of convenience are perverse. In these circumstances, the Courts below had erred in allowing the application under Order 39 Rule 1 and 2 CPC by basing reliance on the fact that the defendant had filed a suit for possession by way of specific performance of agreement to sell dated 28.4.2005. Accordingly, this revision petition is allowed. Consequently, the impugned orders of the Courts below are set aside and the application under Order 39 Rule 1 and 2 filed by the plaintiffs-respondents is dismissed. Anything said above will have no Civil Revision No. 5854 of 2008 (O&M) 5 bearing on the merits of the case. (SABINA) JUDGE November 19, 2009 anita