RSA No. 2506 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 2506 of 2011 (O&M) Date of Decision: 01.6.2011. Mohinder Lal .......Appellant Vs. Madan Lal and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Karan Singh Cheema, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for partition, permanent injunction and mandatory injunction. The case of the plaintiff in brief was that the suit property was ancestral property of the parties. The plaintiff had become owner to the extent of 5/36th share out of the suit property. The parties had constructed their houses in their respective shares as shown in the site plan Anenxures A to C and they were in joint possession of the suit property. The plaintiff and defendants Ram Pal, Krishna Devi and Kuldeep Singh had constructed their houses as shown in Annexure C and the plaintiff had constructed a shed of his haveli and used the property shown in green colour in Annexure C and remaining portion of Khasra No. 52/2/2 and 52/2/1 was lying vacant and RSA No. 2506 of 2011 (O&M) -2- was being commonly used by the parties. Defendant Krishna Devi and her husband Kuldeep Singh had constructed a parnala (water outlet) in their house towards the haveli of the plaintiff and were threatening to dispossess the plaintiff from the property shown in Annexure C and to alienate and raise new construction over the suit property without any legal partition. Defendants No. 1 to 4, in their written statement, averred that parties had raise construction from their own sources exclusively over the joint land inherited by them on the basis of family settlement. Now the property was not joint between the parties. The property in dispute had not been properly described in the head note of the plaint and the site plan attached with the plaint. The houses of defendants No. 1 to 4 also exist in the property depicted in the site plan marked as 'C'. Plaintiff had got no share in the houses built by the answering defendants. The parties had constructed their houses in their respective shares. Plaintiff had forcibly opened a gate and had kept other openings in the land of the answering defendants and a suit in this regard was pending between the parties. Defendants No. 6(a), 7 to 9, 11 to 14, 15(a) and 15(c), in their written statement, admitted that the suit property was ancestral property of the parties. The factum of construction of the houses by the defendants was admitted. However, it was denied that the plaintiff was in possession of the property shown in site plans Annexures A, B and C. The parnala (water outlet) was an old one and was in existence from the time immemorial. The parties were in possession of separate parcels of land on the basis of family settlement. RSA No. 2506 of 2011 (O&M) -3- On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff is entitled to partition to the extent of his share? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is bad for partial partition? OPD 4. Whether this court has got no jurisdiction to try the present suit? OPD 5. Whether the suit is within limitation?OPP 6. Whether the site plan filed by the plaintiff is incorrect? OPD 7. Relief.” Additional Civil Judge (Senior Division) vide judgment and decree dated 23.2.2008 partly decreed the suit of the plaintiff and preliminary decreed was passed in favour of the plaintiff and he was held entitled to possession of his 5/36th share out of the suit property by way of partition. The suit filed by the plaintiff for mandatory injunction and permanent injunction was dismissed. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was dismissed by the Additional District Judge (Adhoc), Fast Tract Court vide judgment and decree dated 28.2.2011. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that in order to protect the nature of the property, the courts below had erred in not granting the injunction qua raising of construction by the defendants over the property in dispute. After hearing the learned counsel for the appellant, I RSA No. 2506 of 2011 (O&M) -4- am of the opinion that the instant appeal deserves dismissal. So far as the suit of the plaintiff for partition is concerned, the same was decreed by the courts below and a preliminary decree has been passed in favour of the plaintiff and it has been held that he was entitled to possession of his 5/36th share out of the suit property by way of partition. The question that requires consideration in the present case is only to the extent as to whether the plaintiff was also entitled to the relief of permanent injunction and mandatory injunction as claimed by him. 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 RSA No. 2506 of 2011 (O&M) -5- 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 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 RSA No. 2506 of 2011 (O&M) -6- 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.” Admittedly, construction had already been raised by the parties over the suit property which is reflected to be the joint property of the parties in the revenue record. Some of the suit property is lying vacant. Since the plaintiff has also raised construction over the joint property, he cannot seek injunction restraining the other co-sharers from raising construction over the suit property. In case any construction is raised by the parties, the same would be obviously taken into consideration at the time of passing of the final decree for partition. Both the courts below had, thus, rightly declined the relief of permanent injunction and mandatory injunction. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE June 01, 2011 Gurpreet