R.S.A. No. 997 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 997 of 2011 (O&M) Date of decision : 25.2.2011 Dalip Singh and others ......Appellants Versus Surat Singh .......Respondent ***** CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. Amandeep Agnihotri, Advocate, for the appellants. **** SABINA, J. Plaintiff had filed suit for permanent injunction. The case of the plaintiff, in brief, was that he was owner in possession of 2 bighas 1 biswas of land out of khasra No. 457/4 situated in village Dhakansu Kalan. Defendants had no concern with the suit land. Defendants, in their written statement, averred that the plaintiff had no concern with the khasra number in dispute. Defendants were in possession of the suit land. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is in possession of the suit land ? OPP. 2. Whether plaintiff is entitled to permanent R.S.A. No. 997 of 2011 (O&M) 2 injunction ? OPP. 3. Whether the suit is not legally maintainable? OPD. 4. Whether suit is bad for non joinder and mis joinder of parties ? OPD. 5. Relief.” Vide judgment and decree dated 28.9.2010, Civil Judge (Junior Division), Rajpura dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree plaintiff preferred an appeal and vide judgment and decree dated 6.1.2011, Additional District Judge, Rajpura allowed the appeal and consequently decreed the suit of the plaintiff. Hence, the present appeal by the defendants. Learned counsel for the appellants has submitted that the plaintiff was not in possession of the suit property. Entries in the revenue record stood rebutted in view of the suit filed by the plaintiff for declaration against Karnail Singh and Rawail Singh. After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal deserves dismissal. 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 R.S.A. No. 997 of 2011 (O&M) 3 of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on 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. (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.” R.S.A. No. 997 of 2011 (O&M) 4 A perusal of jamabandi Ex.P-1 for the year 2003-04 reveals that the plaintiff was in possession of khasra No.457 (0-11) and 457/4 (1-10). Plaintiff is a co-sharer in the land bearing khasra No.457 (4-9). However, out of the said khasra number smaller portions have been carved out and the plaintiff was in exclusive possession of khasra No.457 (0-11) and 457/4 (1-10). The plaintiff being in exclusive possession of the suit land was liable to protect his possession till partition of the suit property by metes and bounds. The learned Additional District Judge had, thus, rightly decreed the suit of the plaintiff by restraining the defendants from interfering in peaceful possession of the plaintiff qua khasra No.457 (0-11) and 457/4 (1-10). No substantial question of law arises in this appeal which would warrant interference by this Court. Dismissed. (SABINA) JUDGE February 25, 2011 Anand