RSA No.4050 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4050 of 2008(O & M) Date of Decision:22.12.2008 Swaran Singh ....appellant Versus Jaswant Singh & ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Ms.Shashi Ghuman, Advocate for the appellant Mr.C.L.Verma, Advocate for Caveator- respondent No.1 **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court, whereby the appeal of the plaintiff-respondent has been accepted partly and a suit for joint possession of the suit land to the limited extent that he is entitled to the joint possession and enjoyment of the suit property without defining his share, has been decreed. Other reliefs of declaration of his share and permanent injunction, were declined. The plaintiff-respondent filed a suit for joint possession of the land in dispute and also prayed for a consequential relief of permanent injunction restraining the defendant permanently from alienating the suit land and also sought declaration to the effect that plaintiff is joint owner of the coparcenary property. It was averred by the plaintiff that he and defendant No.2 and 3 are sons of defendant No.1 and that all the parties to the suit are coparceners and the suit property is coparcenary property of the parties. It was further averred in the suit that defendant No.1 Swaran Singh is its Karta. They are joint in mess, food and worship and RSA No.4050 of 2008 2 agricultural land and that the property in question has devolved from their forefathers and is thus coparcenary property. It has been further averred that the defendants have given 1/4th share of the suit land to the plaintiff for the purpose of cultivation which is in his possession. Swaran Singh his father is extravagant and is wasting joint Hindu Family property in connivance with defendant Nos.2 and 3 and there is no legal necessity and when he asked the defendants to give him his share out of the property they refused to do so, which has cast doubt upon his rights. The plaintiff thus prayed for joint possession of the suit property and also prayed for permanent injunction as stated above. Defendant No.1 contested the suit and filed written statement. Defendant Nos.2 and 3 were proceeded against ex parte. Various preliminary objections were taken by defendant No.1. On merits, the relationship of the parties was admitted. However, it was denied that the suit property was coparcenary property. It was also stated that plaintiff was not part of the Joint Hindu Family and he was residing separately for the last about 15 years. All other material averments of the plaint were denied and the defendants prayed for dismissal of the suit. The trial Court on appraisal of evidence on record dismissed the suit filed by the plaintiff vide impugned judgment and decree dated 09.09.2006. Feeling aggrieved therefrom, the plaintiff filed an appeal. On appreciation of evidence the Lower Appellate Court found that property in dispute at the hands of Swaran Singh is not ancestral qua his sons and the suit land is Joint Hindu Family coparcenary property. The Lower Appellate Court under issue No.3 held that no share of the plaintiff can be defined. Neither any injunction nor any declaration on his share can be issued in his favour. However, the Lower Appellate Court vide impugned judgment and decree dated 30.09.2008 partly accepted the appeal and held that the plaintiff-respondent was entitled to joint possession and RSA No.4050 of 2008 3 enjoyment of suit property without defining his share. Still not satisfied with the impugned judgment and decree of the Lower Appellate Court, defendant No.1 has filed the present appeal in this Court. I have learned counsel for the parties. The sole contention raised by the learned counsel for the appellant in this case is that suit filed by the plaintiff-respondent for joint possession of coparcenary property is not maintainable during the life time of the karta/manager of the Joint Hindu Family, in view of the law laid down by this Court in Raghubir Singh versus Dalip Singh & Anr.2004(2) Civil Court Cases 649, AIR 1986 Punjab & Haryana 112, AIR 1918 Lahore 291. According to the learned counsel, the suit for joint possession is apparently a circuitous method for seeking the partition of the property in the life time of the father as held by this Court in Raghubir Singh's case(Supra) and thus the impugned judgment and decree is liable to be set aside. I have heard learned counsel for the appellant. Argument raised by the learned counsel is misconceived. Vide impugned judgment and decree the plaintiff-respondents have been given a limited relief i.e. the suit of the plaintiff for joint possession and enjoyment of suit property without defining his share, has been decreed. It is apposite to refer to Para 235(2a) of Principles of Hindu Law by Mulla, which for the sake of ready reference is reproduced below: 235 Rights of coparceners:- (2a) Joint possession of enjoyment: Each coparcener is entitled to joint possession and enjoyment of the family property. If any coparcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit. He is not bound to sue for partition. RSA No.4050 of 2008 4 A perusal of Para 235(2a) shows that Hindu Law recognizes the right of a coparcener to file a suit for joint possession in case he is deprived of the same. As far as the judgment 2004(2)CCC 649(supra) is concerned a careful perusal of the same shows that the same has been delivered while relying upon a previous judgment i.e.AIR 1986 P & H 112 Sitara Lal vs.Shiv Kumar wherein it had been held that in Punjab a son is not entitled to ask for partition of coparcenary property the manager of which is his father, without his father's consent. In fact even in Sitara Lal's case the rights of a coparcener as provided in Para 235 had been recognized. The relevant extract from the judgment in Sitara Lal's case is reproduced below: “The manager's liability to account on partition would arise only if partition is permissible. But in Punjab, as it seems to me, when partition can not be enforced against the manager father at the instance of his son, the father's liability to account at the pre-partition stage does not arise. The rights of the members of coparcenary against him are only confined to what is stated in paras 235 and 237, quoted above. These are further elaborated in para 238 as well, but to which reference instantly is not necessary.” In the case relied upon by the respondent i.e.2004(2)CCC 249, the plaintiffs sought a declaration and joint possession as regards their specific 2/3 share in coparcenary property. Grant of such a relief would certainly have been against the spirit of Hindu Law since the share of a coparcener always keeps on fluctuating and cannot be defined as it is bound to change with any birth or death in the family. It was in these circumstances that the High Court observed that the suit for joint possession was a circuitous method for seeking partition of property. It may here again be mentioned that the said observations were made in RSA No.4050 of 2008 5 context of grant of a declaration and joint possession of a specific share. There certainly can be no dispute as regards the said proposition of law that a coparcener cannot seek a declaration or joint possession of a specific share. Respecting this proposition of law, this court has already returned findings on issue No.3 regarding declaration of a specific share against the plaintiff. However, by virtue of Para 235(2a) a coparcener can certainly enforce his right of joint possession and enjoyment without defining the extent of his share. A coparcener who is deprived of enjoyment of coparcenary property is not rendered remediless, especially when in Punjab he cannot even sue for partition without the consent of father. He certainly can file a suit in terms of Para 235(2a) of Principles of Hindu Law by Mulla. Thus, I find no infirmity or illegality in the impugned judgment and decree. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 22.12.2008 neenu