C.R. No. 2489 of 2006 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 2489 of 2006 Date of Decision : 12.10.2009 Varinder Kumar .......... Petitioner Versus Satgur Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. M.K. Singla, Advocate for the petitioner. Mr. Ravish Bansal, Advocate for respondents No. 1 to 3. **** VINOD K. SHARMA, J. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order dated 20.3.2006, passed by the learned Addl. District Judge, Sangrur, vide which application moved by the petitioner / plaintiffs under Order 39 Rules 1 & 2 of the Code of Civil Procedure was ordered to be dismissed. The plaintiffs petitioner filed a suit for declaration claiming themselves to be owner in possession as co-sharer over the land measuring 23K-18Ms, fully detailed and described in the title of the plaint and also that, the sale deeds dated 22.6.2005 executed by defendant No.3 in favour of defendants No.1 & 2 had no effect on the rights of the plaintiffs by claiming the land in dispute to be joint ownership. Plaintiffs also sought C.R. No. 2489 of 2006 2 relief of injunction qua the land measuring 1K-14Ms by claiming to be an agricultural land in joint possession of the parties. Injunction was also sought restraining the defendants from raising any construction over the suit land. The ownership was claimed on the plea that, father of the plaintiffs was owner in possession as co-sharer to the extent of 1/48 share over the land measuring 1K-14Ms and the land measuring 23K-18Ms. Sh. Lachman Dass died on 27.3.1997 and the plaintiffs claimed to have come in the foot steps of Lachman Dass. It was also pleaded case that, the defendants wanted to change the nature of the land by raising construction thereon. An application under Order 39 Rules 1 & 2 of the Code of Civil Procedure was also moved. The suit was contested by raising preliminary objections. A plea was also raised that, the plaintiffs / petitioner had not come to the Court with clean hands. The plaintiffs had suppressed the material facts from the Court, as there was previous litigation vide suit No. 18 of 15.1.1979, decided on 10.5.1982 by the learned Sub Judge Ist Class, Sunam. The said suit was filed against the father of the plaintiffs namely Lachman Dass, defendant No.3 and other co-sharers. In appeal filed against the judgment and decree, the learned Addl. District Judge, Sangrur on 26.10.1983, held the defendants to be owner in possession of the suit land, and some other land total measuring 26K-13Ms. The suit was said to be bad for non compliance of provisions of C.R. No. 2489 of 2006 3 Order 7 Rule 1(J) of the Code of Civil Procedure. The learned trial Court allowed the application moved by the petitioner under Order 39 Rules 1 & 2 of the Code of Civil Procedure and restrained the defendants from raising construction over the suit land. The learned lower appellate Court accepted the appeal primarily on the ground that, there was concealment regarding previous litigation between the parties. The operative part of the order passed by the learned lower appellate Court reads as under :- “In view of the aforesaid observations, the appeal was allowed and the judgment regarding 26 Kanals 13 Marlas regarding Killa No. 9, 12/1, 13, 18/1 and 17/2 was set aside and the observation of the Appellate Court show that the parties in that case had admitted the exclusive ownership of Amar Nath on 26 kanals 13 marlas of land, but these facts having been concealed, the plaintiffs were not entitled to the indulgence of the Court, so the Judicial Pronouncements relied upon by the learned counsel for the plaintiffs/ respondents Ram Niwas Versus Jai ram alias Tej Ram, 2000 (3) Civil Court Cases, 379 (P&H), Bhag Singh Versus Smt. Gulab Kaur, 2000(1) Civil Court Cases, 260 (P&H) Banwari Lal versus Shri Shiv Parsad, 1999 ( Suppl.) Civil Court cases, 582 ( Rajasthan) and Shivapp0a Basavantappa Devaravar versus Bhajan, 1999 ( suppl.) Civil Court cases 98 ( Karnataka), are not applicable to the facts of the present case, C.R. No. 2489 of 2006 4 rather in the present case there are material concealments of facts and on the other hand, the learned counsel for the defendants / appellants has relied upon the Judicial pronouncement Bal Kishan Versus Ram Singh, 2001 (3) Civil Court Cases, 52 (P&H), according to which, once a co- sharer sells his share in his possession and puts the vendee in possession, the vendee for valuable consideration, in the capacity of co-sharer becomes entitled to use and enjoy the property as he likes. He has also relied upon Jagir singh Versus Harbans Singh, 2000(4) Recent Civil Reports, 461 (P&H), as per which, a person who seeks equity must do equity. Therefore, in view of the Judicial pronouncement relied upon by the learned counsel for the defendants/ appellants, due to concealment of material facts regarding the earlier litigation in which the possession and exclusive ownership of Amar Nath was ordered by the Appellate Court, this appeal is allowed and resultantly the impugned order is set aside and stay application stands dismissed.” The learned counsel for the petitioner has impugned the judgment and decree passed by the learned lower appellate Court primarily on the ground that, there was no concealment on the part of the plaintiffs, as the previous litigation was duly mentioned. The plaintiffs were not aware of the decree passed in appeal, as no service was effected on them or their predecessor-in-interest. The learned counsel for the petitioner has also challenged the impugned order on the plea that, each of the co-owners have interest in C.R. No. 2489 of 2006 5 every inch of common property and, therefore, a co-owner cannot take exclusive possession of the property nor commit an act of waste, ouster or illegitimate use. In support of this contention reliance was placed on the judgment of the Hon'ble Supreme Court in the case of T. Lakshmipathi and others Vs. P. Nithyananda Reddy and others 2003(2) R.C.R. (Rent) 117. Mr. Ravish Bansal, learned counsel for respondents No. 1 to 3, however, contended that, petitioner has no prima facie case, as in the previous litigation the respondents were held to be owner in possession of the land measuring 26Ks-13Ms. It was also contended that, the property was partitioned and the remaining land after giving possession of 26Ks-13Ms was partitioned between the remaining parties, including predecessor of plaintiffs / petitioner. The learned counsel for respondents No. 1 to 3 also contended that, even if for the sake of arguments it is taken that the parties are co- owner, still a co-owner cannot restrain the other co-owner from raising construction, as it does not amount to an act of waste. In support of this contention the learned counsel for the respondents placed reliance on the Division Bench judgment of this Court in the case of Bachan Singh Vs. Swaran Singh 2000(3) RCR ( Civil) 70. On consideration, I find no force in the contentions raised by the learned counsel for the petitioner. Though, it cannot be said that, it was a case of concealment of facts, as the plaintiffs were claiming injunction against raising of construction and in the previous suit the predecessor-in- interest of the plaintiffs and that of respondents were restrained by the C.R. No. 2489 of 2006 6 learned trial Court from interfering in possession of 3rd party. However, in the previous judgment the defendants were held to be owners in possession of the property, therefore, it cannot be said that the plaintiffs / petitioner had any prima facie case to restrain the defendants from raising construction. The order passed by the learned lower appellate Court deserves to be upheld in view of the Division Bench judgment of this Court in the case of Bachan Singh Vs. Swaran Singh (supra), as a co- owner cannot seek injunction against raising of construction by the other co-owner over the land in his possession. No ground is made out to interfere with the impugned order. Dismissed. 12.10.2009 ( VINOD K. SHARMA ) 'sp' JUDGE