R.S.A.No. 4953 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4953 of 2010 (O&M) Date of decision: 2.2.2011 Shri Kishan ......Appellant Versus Chiranji Lal and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.J.P.Sharma, Advocate, for the appellant. **** SABINA, J. Plaintiff had filed a suit for permanent injunction and the case of the plaintiff, in brief, was that he was owner in possession of the suit land measuring 2 bigha 8 biswa bearing khasra Nos. 5019 (2-7) and 5019(2-8). The total land measured 4 bigha 15 biswa but the plaintiff was owner in possession of the suit land i.e. half share out of the total land. After the death of Nathu Ram, plaintiff and performa defendants had come in possession of the suit land. The contesting defendants had no concern with the suit land. R.S.A.No. 4953 of 2010 (O&M) 2 Consolidation proceedings were conducted in the month of September 2005. 11 feet passage was left towards the Northern side of the suit land. Contesting defendants were threatening to interfere in the peaceful possession of the plaintiff. Defendant No.1, in his written statement along with counter claim, averred that the plaintiff and proforma defendants were owners in possession of the land to the extent of half share. However, it was denied that the plaintiff and proforma defendants were in possession of the suit land. It was further averred that defendant No.1 had been allotted 1 bigha 3 biswa 15 biswansi land towards Eastern side of the 11 feet passage left during consolidation. Defendant No.1 had sown crop in the land allotted to him. The land allotted to the plaintiff and proforma defendants and contesting defendants No.2 to 5 was still lying in un-cultivating condition. Defendant No.1 sought a decree for permanent injunction to the effect that the plaintiff and the other defendants be restrained from interfering in his peaceful possession. Defendants No.2 to 5, in their written statement, averred that the plaintiff and proforma defendants were owners in possession of the suit land to the extent of half share but now the plaintiff and proforma defendants were not in possession of the suit land. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff and proforma defendants are R.S.A.No. 4953 of 2010 (O&M) 3 owners in possession to the extent of ½ share over the property measuring 2 bigha 8 biswa? OPP. 2. Whether, if issue No.1 is proved then plaintiff is entitled to decree of permanent injunction as prayed for OPP 3. Whether plaintiff has no locus standi to file the present suit ? OPD 4.Whether present suit is not maintainable ? OPD 5. Whether plaintiff has not come in the Court with clean hands and concealed true and material facts from the Court ? OPD 6. Relief.” Vide order of the even date, the following additional issue was framed: “3-A Whether the defendant No.1 is in possession ovder khasra No.5019 measuring 2 bigha 8 biswas as alleged in the counter claim? Onus to prove upon defendant No.1.” The trial Court vide judgment and decree dated 6.1.2010, decreed the suit of the plaintiff and dismissed the counter claim filed by defendant No.1. Aggrieved by the same, defendant No.1 preferred an appeal and the same was dismissed vide judgment and decree dated 30.7.2010 passed by Additional District Judge, (Fast Track Court) Narnaul. Hence, the present appeal by the defendant No.1. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves R.S.A.No. 4953 of 2010 (O&M) 4 dismissal. 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 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 R.S.A.No. 4953 of 2010 (O&M) 5 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.” It is a settled proposition of law that a co-sharer, who is in exclusive possession of the joint holding is entitled to protect his R.S.A.No. 4953 of 2010 (O&M) 6 possession The plaintiff is in possession of Khasra No.5019 measuring 2 bigha 8 biswas, as per the copy of the jamabandi for the year 1989-90, Ex.P-3. Since the plaintiff, though a co-sharer, is in exclusive possession of the suit property, he is entitled to protect the same till the suit property is partitioned by metes and bounds. In these circumstances, both the Courts below had rightly decreed the suit of the plaintiff. The apprehension of the learned counsel for the appellant that the findings of the Courts below would have a bearing on the partition proceedings, which are pending, is without any basis as by way of present suit, the plaintiff had merely sought a decree for permanent injunction to protect his possession till the property is partitioned by metes and bounds. 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 02, 2011 anita