RSA No. 147 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 147 of 2006 Date of Decision: March 15, 2010 Kuldip and others ...... Appellants Versus Smt. Kaushalya Devi and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Surender Dhull, Advocate for the appellant No.6. Mr.Rakesh Nehra, Advocate for appellants No. 1 to 5 and 7 to 10. Mr.Sandeep Kotla, Advocate for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgment of the learned Lower Appellate Court reversing that of the trial Court and thereby decreeing the suit of the respondents for an injunction restraining the appellants from interfering with their possession over the land measuring 9 Kanals 3 Marlas situated in Khata No. 720, Khasra Nos. 293/16(6-10) and 18/1(2-1). It is not disputed that all the parties are share holders in different tracts of land some of which is urban and some of which is rural. RSA No. 147 of 2006 2 It is also not disputed that with regard to this joint holding there is one suit which has been filed in the Civil Court (in relation to urban land) and another application for partition which has been filed before the revenue authorities for the agricultural land. The learned trial Court holding that the parties were co-sharers refused the injunction. The learned Lower Appellate Court, however, relied upon an earlier litigation between the predecessors- in-interest of the parties wherein predecessor-in-interest of the appellants had admitted that predecessor-in-interest of the respondents was in exclusive possession of this land (measuring 9 kanals 3 marlas). The court also relied upon the revenue record from 1966 onwards which also corroborated the exclusive possession of the respondents over the land in dispute. Consequently holding the respondents to be in exclusive possession albeit- as co-sharers - the learned Lower Appellate Court decreed the suit. It may be noticed at the very outset that this appeal was originally filed by 10 persons out of whom appellants No. 1 to 5 and 7 to 10 are now supporting the respondents. It is only the appellant No.6 who is agitating this matter. The following questions have been proposed:- i) Whether a person can be put in possession beyond his sharer? ii)Whether every khewat is equally owned as per their share by all co-sharers? iii)Whether one co-sharer can sell or take possession of the land more than his share? iv)Whether one co-sharer can be in absolute possession and ownership in one khewat more than his share? v) Whether injunction can be granted against a true owner i.e. the co-sharer when suit for partition is pending? It would be seen that all the proposed questions are RSA No. 147 of 2006 3 overlapping. Learned counsel for the appellant No.6 has vehemently argued that what the respondents are doing is to sell and make construction on the land in dispute so that his right in partition proceedings can be jeopardized. He has further stated that in his suit and application for partition the respondents have taken the plea that the said suit and the application are bad for partial partition. He has argued that in these different partition proceedings and the possession of the respondents over the land in dispute there is a strong likelihood that the appellant would be left with no share in this urban and commercially more viable property. Learned counsel for the respondents has very fairly stated that they are ready to safeguard the interest of the appellant No.6. In case the appellant amends the suit which has been filed in the Civil Court and includes the total joint holding therein (after withdrawing the application filed before the revenue Court) the respondents will not take the objection that as regards the agricultural portion of the joint holding the Civil Court has no jurisdiction. The learned counsel state that once the partition of the entire joint holding is made by one court all the factors including commercial viability etc. would be taken into consideration and all the co-sharers and their respective vendees would be placed in total equivalence. In view of this fair statement of learned counsel for the respondents as well as for the appellants No.1 to 5 and 7 to 10 this appeal is dismissed. (AJAY TEWARI) JUDGE March 15, 2010 sunita