Regular Second Appeal No. 132 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 132 of 2007 Date of Order: 29.07.2009 Vijay Singh ....Appellant Versus Man Singh and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.Arun Yadav,Advocate for the appellant. Mr. Sanjay Vashisth, Advocate for the respondents. RAJIVE BHALLA, J (Oral). The appellant challenges the judgments and decrees dated 02.12.2002 and 31.07.2006, passed by the Additional Civil Judge (Senior Division),Rewari and the Additional District Judge, Rewari, accepting the appeal filed by the respondents, setting aside the judgment and decree passed by the trial court and dismissing the suit filed by the appellant. The plaintiff-appellant, filed a suit praying that the respondents should be restrained from raising any construction over any specific portion of the suit land as he was joint owner in possession of ½ share of 29 Kanals 11 marlas pursuant to a sale deed dated 03.09.1975. In response to the averments in the plaint, the respondents filed a written statement and admitted the sale deed dated 03.09.1975 but asserted that as they are in possession of the entire land measuring 29 kanals 11 marlas, to the exclusion of the appellant, they have perfected their title by adverse possession. On the basis of the pleadings, the trial court framed the following Regular Second Appeal No. 132 of 2007 -2- issues and called upon the parties to lead evidence. “1. Whether the plaintiff and defendants are owner in possession of the land in dispute as mentioned in para no.1 of the plaint and having their respective share as mentioned in the sale deed no.1067 dated 03.09.1975 and mutation no.155?OPP 2. Whether the above land has not been partitioned by meets and bounds and or by any court?OPP 3. Whether the suit has been filed by duly authorised person?OPP 4. Whether the above suit is not maintainable in the present form?OPD 5. Whether the plaintiff has no right to file the present suit?OPD 6. Whether the plaintiff is estopped by his act and conduct to file the present suit?OPD 7. Whether the defendant no.2 is owner in possession of the above land by way of adverse possession?OPD 8. Relief.” After considering the pleadings, the evidence adduced and arguments addressed, the trial court held as a matter of fact that both the appellant and the respondents are joint owners of ½ share each, having purchased the suit land, pursuant to a sale deed dated 03.09.1975. The respondents' plea of adverse possession was negatived by holding that a co-sharer could not raise the plea of adverse possession against the proprietory and possessory right of another co-sharer. Aggrieved by the aforementioned judgment and decree, the respondents filed an appeal. The Additional District Judge, Rewari, vide Regular Second Appeal No. 132 of 2007 -3- judgment and decree dated 31.07.2006, accepted the appeal, set aside the judgment and decree passed by the trial court and dismissed the suit by holding that an injunction could not be granted against a co-sharer and the remedy, if any was to file a suit for partition. Counsel for the appellant submits that as the respondents have claimed ownership by adverse possession, i.e. ouster of the title of a co- sharer, the general principle of law that an injunction cannot be issued against a co-sharer would not apply. It is submitted that where a co-sharer pleads ouster of the title of another, the aggrieved co-sharer may approach the Court for protection of his proprietory and possessory title. It is prayed that as the appellant is admittedly a co-sharer, and draws his rights from the sale deed dated 03.09.1975, the first appellate court had no jurisdiction to reverse the judgment and decree, passed by the trial court and vacate the injunction granted by the trial court. Counsel for the respondent, on the other hand, by reference to two Full Bench judgments titled Bhartu v. Ram Sarup, 1981 PLJ 204 and Ram Chander v. Bhim singh 2009(3) RCR(Civil)685, submits an injunction cannot be issued against a co-sharer and, therefore, the first appellate court rightly reversed the judgment passed by the trial court. I have heard counsel for the parties and perused the impugned judgments. As is apparent from the findings recorded by the courts below, parties are co-sharers to the extent of ½ share each in the suit land. The assertion by the respondent that he has perfected his title by adverse possession with respect to the appellant's share has been negatived by the trial court as also by the first appellate court thus accepting that parties are co-sharers in joint possession of the suit property. I find no error in these findings. The remedy, if any, for the appellant, is to file a suit for partition before the appropriate forum. It goes without saying that any change in the nature of the suit land or any additions or improvement made Regular Second Appeal No. 132 of 2007 -4- by a co-sharer are subject to their inter-se rights to be determined during partition. In view of what has been stated hereinabove, as the impugned judgment does not suffer from any error and as no question of law much less a substantial question of law arises for consideration, the appeal is dismissed. July 29, 2009 (RAJIVE BHALLA) nt JUDGE