RSA No.4342 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4342 of 2010 (O&M). Decided on: June 01, 2011. Jaswant Singh and another. .. Appellants VERSUS Surjan Singh and others. .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.Sandeep Khunger, Advocate, for the appellants. M.M.S. BEDI, J. Suit of the plaintiffs-respondents for permanent injunction regarding the property in dispute mentioned in heading of the plaint, was dismissed by the trial Court, but the lower appellate Court had decreed the suit of the plaintiffs-respondents restraining the defendants-appellants from interfering in the lawful and peaceful . . . 1 RSA No.4342 of 2010 (O&M) possession of the plaintiffs-respondents. Defendants have preferred this appeal against the judgment of reversal. Counsel for the appellants has placed reliance on judgment in case Bharthu Vs. Ram Sarup, 1981 PLJ 204, to contend that the plaintiffs-respondents being co-sharers with the defendants-appellants on account of successor-in-interest of Harnam Singh, are not entitled to the relief of injunction against co- sharer despite the fact that they are in actual physical possession of the property in dispute. Counsel for the appellants claims that the plaintiffs- respondents in the capacity as co-sharers are in possession of the property more than their share, as such, the suit of the plaintiffs- respondents should have been dismissed. I have heard the counsel for the appellants. The suit of the plaintiffs-respondents for permanent injunction regarding the property in dispute was dismissed before the trial Court, inter alia, on the ground that the legal heirs of deceased Harnam Singh have not been made party to the suit and that some entries as per jamabandis EX.P1 & EX.P2, having not been challenged, the plaintiffs-respondents are not entitled to the grant of injunction. The trial Court also held that the plaintiffs-respondents having not been able to show their exclusive possession over Khasra Nos.23 min (2-0), 7//8 min Sharak (1-5) 6//25(8-0), their suit deserves to be dismissed. The lower appellate Court in an appeal . . . 2 RSA No.4342 of 2010 (O&M) filed by one of the plaintiffs, Surjan Singh held that the defendants- appellants have failed to show their possession on any portion of the property in dispute and that the plaintiffs have succeeded in proving their possession over the specific portion of the land though in the capacity as co-sharers, as such, the plaintiff is entitled to protect his possession. The appeal had been filed by Surjan Singh, plaintiff. The defendants-appellants have challenged the finding of the lower appellate Court on the ground that a co-sharer is not entitled to the injunction. There is no controversy regarding the law pertaining to co-sharers that each co-owner has an interest in the whole property and also in every parcel of it; and 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. It is also settled law that passage of time does not extinguish the right of co-owners who has been out of possession of the joint property except in the event of ouster by abandonment. It is also law of co-ownership that when a co-owner is in possession of a parcel of entire land, it is not open to anybody to disturb the said arrangement without the consent of others except by filing a suit for partition. The interest of the defendants-appellants in the property in possession of the plaintiffs- respondents does not permit him to interfere in lawful cultivating possession of the land. A concurrent finding of fact has been arrived at by the Courts below that the plaintiffs-respondents have been in possession of the property in dispute. The defendants-appellants . . . 3 RSA No.4342 of 2010 (O&M) have got a legal right to seek partition of the joint land and claim possession of the property vesting in them. The Courts below have, on the basis of the established possession of the plaintiffs- respondents, decreed the suit for injunction. Merely because the plaintiffs-respondents are co-sharer in possession of the property, the suit cannot be dismissed on the ground that the said possession will be deemed to be possession of the defendants-appellants. A co- sharer in possession is entitled to protect the same unless disturbed in accordance with law. Even if it is established in partition proceedings that the plaintiffs-respondents are not the owners of the entire property in his possession, the plaintiffs being co-sharers would be entitled to seek an interim injunction to protect their rights of retaining possession till disbursed in accordance with law. No sufficient ground is made out for interference in the order passed by the lower appellate Court decreeing the suit of the plaintiffs-respondents for injunction as no substantial question of law is involved. Dismissed. (M.M.S.BEDI) JUDGE June 01, 2011. rka . . . 4