R.S.A.No. 2912 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2912 of 2009 (O&M) Date of decision: 8.2.2011 Jage Ram ......Appellant Versus Hari Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sanjeev Kodan, Advocate, for the appellant. None for the respondent. **** SABINA, J. Plaintiff had filed a suit for permanent injunction alleging that he was a co-sharer in possession of the suit land. Plaintiff, after harvesting bajra crop, wanted to prepare the fields for sowing next crop. However, defendants were threatening to interfere in the peaceful possession of the plaintiff. Defendant No.1, in his written statement, averred that he had purchased the land measuring 1 bigha 19 biswas i.e. 1/15th R.S.A.No. 2912 of 2009 (O&M) 2 share out of the suit land vide sale deed executed by Surender Singh, son of the plaintiff, in his favour. Defendant was in possession of the land purchased by him. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner in possession of 25 bighs 6 biswa as co-sharer as alleged? OPP. 2. Whether the defendant has disobeyed the order of the Court dated 22.9.1994 ? OPP 3. Whether the plaintiff has got no locus standi to file the suit ? OPD 4. Whether the suit is not maintainable in its present form ? OPD 5. Whether the plaintiff has filed this suit in order to harass the defendants and they are entitled to special costs ? OPD 6. Relief.” The trial Court decreed the suit of the plaintiff vide judgment and decree dated 4.9.2002 and restrained the defendants from interfering in peaceful possession of the plaintiff over the suit property except in due course of law. Aggrieved by the same, defendant No.1 preferred an appeal and the same was dismissed vide judgment and decree dated 27.2.2009 passed by Additional District Judge, Bhiwani. Hence, the present appeal by defendant No.1. R.S.A.No. 2912 of 2009 (O&M) 3 After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The case of the plaintiff was that he was in possession of 20 bighas 12 biswas of land bearing khasra No.158. Surender Singh, son of the plaintiff, had never cultivated the suit land. The case of the defendants, on the other hand, was that Surender Singh had sold 1 bigha 19 biswas out of the suit land to defendant No.1 vide sale deed Ex.P-1. Both the Courts below, after appreciating the evidence led by the parties on record, have held that as per the revenue record, plaintiff was in exclusive possession of the suit property. Learned counsel for the appellant has not been able to challenge the said finding of fact. It has been held by this Court in the case 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 R.S.A.No. 2912 of 2009 (O&M) 4 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 R.S.A.No. 2912 of 2009 (O&M) 5 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.” It is a settled proposition of law that a co-sharer, who is in exclusive possession of the suit property, is entitled to protect his possession. Hence, the Courts below had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE February 08, 2011 anita