C.R. No. 486 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 486 of 2011 Date of decision : 24.1.2011 Satpal and another ......Petitioners Versus Rajinder Kumar and another .......Respondents ******* CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. J.S. Virk, Advocate, for the petitioners. **** SABINA, J. Plaintiffs-petitioners had filed a suit for declaration challenging the sale deed dated 20.1.2009 in favour of defendants alongwith an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The said application was dismissed by the trial Court vide order dated 24.4.2010. Aggrieved by the same, plaintiffs-petitioners preferred an appeal and the same was dismissed by the Additional District Judge, Kurukshetra vide order dated 15.10.2010. Hence, the present petition. Learned counsel for the petitioners has submitted that the petitioner No.1 was co-owner to the extent of 1/3rd share in the suit property. Defendant No.2 with undue influence had got executed sale deed in favour of defendant No.1 from Mohan Bahadur. The defendants were liable to be restrained from interfering in the peaceful possession of the plaintiffs. C.R. No. 486 of 2011 2 After hearing the learned counsel for the petitioners, I am of the opinion that the instant petition 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 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. C.R. No. 486 of 2011 3 (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.” Thus, a co-sharer who is not in exclusive possession of the suit property cannot seek injunction against the other co-sharer. In the present case the property is admittedly described to be in joint possession of the co-sharer. The plaintiffs are, thus, not in exclusive possession of the suit C.R. No. 486 of 2011 4 property and hence they cannot seek injunction against the other co-sharers. Defendant No.1 after purchase of the suit property has become a co-sharer in the same. The Courts below had, thus, rightly dismissed the application filed by the petitioners as the petitioners had no prima facie case or balance of convenience in their favour. Dismissed. (SABINA) JUDGE January 24, 2011 Anand