R.S.A.No. 971 of 2008 (O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 971 of 2008 (O&M) Date of Decision:August 17, 2009 Gurpreet Singh and another ---Appellants versus Harnek Singh ---Respondent Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.R.N.Moudgil,Advocate, for the appellants Mr.HNS Gill, Advocate, for the respondents. *** SABINA J. Plaintiff –Harnek Singh had filed a Civil suit No. 417 dated 17.7.1999 and Paramjit Kaur and Gurpreet Singh-plaintiffs had filed Civil Suit No. 295 dated 10.8.1999 for permanent injunction restraining the defendants from interfering in their peaceful possession. Civil Judge ( Junior Division),Kharar vide judgment and decree dated 22.11.2006 dismissed the suit filed by plaintiff- Harnek Singh and decreed the suit of the plaintiffs- Paramjit Kaur and Gurpreet Singh. Aggrieved by the same, plaintiff-Harnek Singh preferred appeals. Additional District Judge, Rupnagar vide judgment and decree dated 22.12.2007, dismissed the appeal filed by Harnek Singh-plaintiff against Gurpreet Singh and R.S.A.No. 971 of 2008 (O&M) {2} Bhupinder Singh (defendants in C.S.No. RT/ 417 of 17.7.1999)and allowed the appeal filed by Harnek Singh against Paramjit Kaur and Gurpreet Singh(Plaintiffs in C.S.No. 295 of 10.8.1999) Hence, the present appeal by plaintiffs Gurpreet Singh and Paramjit Kaur. The facts of the case as noticed by the learned Additional District Judge, in paras 3 and 4 of its judgment read as under:- “ 3. The case of the appellant, in brief, is that the appellant purchased 3K-19M from the suit land measuring 20K. He was put in exclusive possession of the land near the Phirni of village Gabe Majra. The respondents have got no right to interfere in the said exclusive possession of the appellant.; Yet, they have threatened to dispossess the appellant illegally and forcibly. Hence, the suit. 4. The case of the respondents Gurprit Singh and paramjit Kaur on the other hand, in brief, is that they are co-owners to the extent of 4/5 share, whereas the appellant is the co-owner to the extent of 1/5th share of the joint holding only.The respondent Gurprit Singh purchased 3/5 share of the suit land on 5.6.1998 and he came to be in possession of the entire suit land, as he was cultivating the shares of Paramjit Kaur and Bhupinder Singh who ultimately sold his 1/5th share of the suit land to the appellant. The appellant tried to forcibly occupy a specific portion of the land adjoining the passage shown as red in the site plan Ex.D2/A . Whole of the land was joint and was in joint cultivation of the co-owners. Hence, the R.S.A.No. 971 of 2008 (O&M) {3} co-owners who sold his 1/5th share to the appellant was not in exclusive possession of any parcel of the joint holding. Hence, he could not have delivered the exclusive possession of any parcel of the joint holding. As the appellant forcibly tried to occupy a specific portion of the joint holding, the matter was taken to the Police. Hence, with the intervention of the respectables and common friends, the parties resolved the matter amicably and executed the settlement Ex. D1/A on 13.6.1999. Accordingly, the portion shown as back in Ex. D2/A fell to the share of Paramjit Kaur, green portion fell to the share of Gurpreet Singh and blue portion fell to the share of the appellant. The parties occupied the suit land in the above said manner and started cultivating their respective parcels. Gurprit Singh respondent sowed maze and fodder crops in the land in his possession. In violation of the aforesaid compromise, on 11.12.7.1999, the appellant destroyed the maze crop sown by the respondent Gurprit Singh. Accordingly, FIR No. 100 dated 13.7.1999 was got registered against him under Sections 44, 427 and 506 IPC. The appellant did not desist and he again threatened to interfere in the possession of the respondents in the land above said. He was requested to desist from doing so. But in vain. Hence the suit of the respondents.” On the pleadings of the parties, trial court framed the following issues in Civil suit No.417/17.7.1999 “(1)Whether the plaintiff is entitled to the permanent injunction R.S.A.No. 971 of 2008 (O&M) {4} as prayed for ? OPP (2)Relief Following issues sere framed by the trial court in Civil Suit No. 295/10.8.1999:- (1)Whether the plaintiffs entitled to the permanent injunction as prayed for? OPP (2)Whether the suit of the plaintiffs is not maintainable in the present form? OPD (3)Whether the plaintiff has no locus standi to file the present suit? OPD (4)Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiffs filed a suit for permanent injunction restraining the defendants from interfering in their peaceful possession. 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 R.S.A.No. 971 of 2008 (O&M) {5} 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 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 particular parcel will be liable to be restored to its original condition. It is not R.S.A.No. 971 of 2008 (O&M) {6} necessary in such a case to show that special damage has been suffered. Case law reviewed.” Admittedly, the suit land is jointly owned and possessed by the parties as per their share. Learned counsel for the appellants has failed to point out from record that the appellants are in exclusive possession of the suit property. Reliance has been placed by the learned counsel for the appellants on the compromise alleged to have been executed between the parties (Es. D1/A). However, the said compromise is not a memorandum of partition and is rather a partition deed. Since the same has not been registered, it is inadmissible in evidence. Admittedly, the alleged partition between the parties is not reflected in the revenue record. In these circumstances, every co-sharer has a right to enjoy the joint property and is presumed to be in possession of every inch of the joint property. Learned lower appellate court has, thus, rightly dismissed the suit of the plaintiffs for permanent injunction. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE August 17, 2009 PARAMJIT