RSA No.2450 of 1983 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.2450 of 1983 Date of decision: 14.1.2010 Umed Singh and another .....Appellants vs. Khaman Singh deceased now represented through his legal representatives and another. .....Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr. Ashok Aggarwal,Senior Advocate, with Mr.Piyush Bansal, Advocate, for the appellants. Mr.Gopal Sharma, Advocate, for respondent No.1. -- Rakesh Kumar Garg,J.(Oral) This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby the suit for permanent injunction filed by the plaintiff restraining respondent-defendant No.1 from raising any construction over the property in dispute, was dismissed holding that the plaintiff was co-owner of the suit land along with defendants but he was not proved to be in possession. In the present appeal, learned counsel for the appellant has argued that assuming that the finding of the appellate Court that the property in dispute is jointly owned by the parties and further is in exclusive possession of the respondents, they cannot use the aforesaid property in a manner, to the detriment of the plaintiffs. On the basis of the aforesaid argument learned counsel for the appellant submitted that the RSA No.2450 of 1983 2 following substantial question of law arises in this appeal:- “Whether the co-sharer in possession of exclusive piece of land can use the same detrimental to the rights of the other co- sharer without the partition being affected between the co- sharers ? I have heard the learned counsel for the parties. The aforesaid substantial question of law, as framed by the learned counsel for the appellant, has been answered by a Division Bench of this Court in Bachan Singh v. Swaran Singh, 2000(2)PLJ 143, wherein it has been held as under:- “ On a consideration of the judicial pronouncements on the subject, we are of the opinion that : (i)A co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster,prejudicial or adverse to the interest of co- owner out of possession. (ii) Mere making of construction or improvement of, in the common property does not amount to ouster. (iii) If by the act of co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property. (iv) If the acts of the co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest. In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction RSA No.2450 of 1983 3 restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co-owner.” In view of the authoritative pronouncement of this Court, the suit for permanent injunction simpliciter filed by the appellant was not maintainable. Thus, the substantial question of law raised by the learned counsel for the appellant does not arise in this appeal. No other point is urged. No merit. Dismissed. ( Rakesh Kumar Garg) Judge January 14, 2010 rk