RSA No.4328 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4328 of 2006(O & M) Date of Decision:04.03.2009 Zile Singh & Ors. ....appellants Versus Halwant & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Gorakh Nath,Advocate for the appellants Mr.R.S.Chahar, Advocate for the respondents **** RAKESH KUMAR GARG J. This is plaintiffs' second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the defendants-respondents has been accepted and the judgment and decree dated 10.02.2005 passed by the trial Court has been set aside resulting into the dismissal of the suit of the plaintiffs-appellants for grant of permanent injunction. Briefly stated, as averred, the facts of the case of the appellants are that they along with other co-sharers i.e.defendant Nos.6(i) to 6(viii) are actual owners in possession as Hissedars of the land in dispute being mortgagees. The mortgage land was not redeemed within a period of 38 years by the mortgagers and in that way their rights of redemption had been extinguished and the mortgagees/plaintiffs have become owners and they are in actual physical possession of the suit land. Defendant Nos.1 to 5 never cultivated the suit land. However, they want to RSA No.4328 of 2006 2 take back the possession of the suit land illegally and forcibly. Despite repeated requests, defendant Nos.1 to 5 are threatening to dispossess the plaintiffs forcibly and illegally. Hence this suit. Defendant Nos.1 to 5 filed joint written statement controverting the allegations of the plaintiffs and inter alia pleaded that the defendants were the owners in possession of the suit land. The suit land had already been partitioned by the revenue authorities and the plaintiffs had got no right, title or interest in the suit land. Earlier Civil Suit filed by the plaintiffs bearing No.570 of 1991 for declaration was dismissed as withdrawn on 22.02.1994. Defendants never mortgaged the suit land, therefore, the question of getting the suit land redeemed, does not arise. The plaintiffs are neither the owners nor in possession of the suit land. Objections were also raised to the maintainability of the suit in the present form. Dismissal of the suit was prayed. After perusing the evidence and hearing the arguments, the trial Court decreed the suit of the plaintiffs with no order as to costs. It is relevant to mention here that while decreeing the suit of the plaintiffs for permanent injunction, the trial Court recorded a finding of fact that the present suit was neither a suit for declaration nor a suit for fore-closure nor there was any counter claim on behalf of the contesting defendants/appellants with regard to exercise their right to redemption and in fact the suit was a simple suit for permanent injunction which was being claimed by plaintiffs on the long standing possession being mortgagees, restraining the defendants not to take the possession of the suit property from the plaintiffs illegally and forcibly. Feeling aggrieved by the aforesaid judgment and decree of the trial Court, the defendants filed an appeal which was accepted by the Additional District Judge, Sonepat vide impugned judgment and decree dated 01.02.2006. RSA No.4328 of 2006 3 I have heard learned counsel for the parties. Both the Courts below have recorded a finding of fact that the parties to the suit are recorded to be in possession of the suit land as co-sharers in the entire land as per the revenue record and in view of this finding of fact which is not disputed, the suit of the plaintiffs respondents for grant of permanent injunction was not maintainable as it is settled proposition of law that a co-sharer in the land cannot seek relief of injunction against another co-sharer. A co-sharer is admitted to be owner and in possession of joint holding even when he is not in possession of any specific part. The status of a co-sharer always remains as such till the land is partitioned. The mere fact that co-sharers have been in exclusive enjoyment of the property cannot per se amount to ouster of any other co- sharer and none of the co-sharer can claim adverse possession against the co-sharer. Thus, I find no fault in the findings of the impugned judgment and decree passed by the Lower Appellate Court. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 04.03.2009 neenu