C.R No. 3910 of 2007 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R No. 3910 of 2007 Date of decision : March 3rd, 2008 Mohan Lal & others, ...... Petitioners through Mr.Chetan Mittal, Sr Advocate with Mr.Vishal Garg, Advocate v. Preet Kumar & others, ...... Respondents through Mr.Sachin Mittal, Advocate CORAM : HON'BLE MR. JUSTICE RAJIVE BHALLA *** 1. Whether Reporters of Local Newspapers 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 ? *** RAJIVE BHALLA,J Challenge in this revision petition is to an order, dated 21.4.2006, passed by the learned Civil Judge (Junior Division), Gurgaon, whereby parties have been directed to maintain status quo regarding construction and alienation over the suit property till the decision of the suit for partition on merits, as also to an order, dated 16.5.2007, whereby the defendants/petitioners' appeal, filed against the aforementioned order, has been dismissed. The plaintiffs-respondents filed a suit for possession by way of partition, inter alia pleading that vide registered sale deed, dated 30.9.1959, Hira Lal, Gurdayal Sharma and Mohan Lal Bhardwaj purchased land comprising of Khasra No.412. Hira Lal passed away and was succeeded by his widow Smt. Lakshmi Devi, sons Narottam, Harbans Lal, and C.R No. 3910 of 2007 ::2:: daughters Maya Devi and Shanti Devi, who sold their 1/3rd share in the aforesaid property, vide registered sale deed, dated 26.7.1971 to Maharaj Kishan son of Arjun Dass, predecessor-in-interest of the plaintiffs and delivered possession in respect thereof. Vide registered sale deed, dated 15.7.1971, Gurdial Sharma, owner of another 1/3rd share, sold his share to Maharaj Kishan and delivered possession. After purchase of these shares, Maharaj Kishan became owner in possession of 2/3rd share. As Maharaj Kishan and his wife expired, the respondents, who are their legal heirs, became owners in possession to the extent of 2/3rd share of the suit property. It was further asserted that the petitioners executed sale deeds, dated 27.10.2005, 11.11.2005, 25.1.2006, 27.1.2006 in favour of defendant Nos.3 to 5, defendant No.6, defendants No.6 & 7, and defendants No.8 to 11, each measuring 300 square yards respectively. The suit was accompanied by an application, under Order 39 Rules 1 & 2 read with Section 151 of the CPC praying for the issuance of an injunction restraining the defendants from raising any construction on any specific portion of the suit property and from effecting any further transfers of specific portions. The petitioners-defendants filed a written statement raising preliminary objections as to locus standi, concealment of facts etc. On merits, it was admitted that Khasra No.412 was jointly purchased by Hira Lal, Gurdayal and Mohan Lal. Gurdayal and Hira Lal decided to set up a joint partnership business along with Devki Devi. Eventually, they entered into a partnership and set up a business in the name and style of “Geeta Potteries”, with Hira Lal and Gurdayal contributing 2/3rd share i.e southern portion of Khasra No.412, whereas Devki agreed to spend the entire amount to set up the business. A factory premises was constructed in the 2/3rd share C.R No. 3910 of 2007 ::3:: of Gurdayal and Hira Lal. Thus, in essence, co-ownership ceased to exist and the petitioners became exclusive owners in possession of the land in their possession. Subsequently, on account of losses to the business, recovery proceedings were initiated against Geeta Potteries and its land was attached and thereafter put to auction. The land was purchased by one Manohar Lal. Pursuant to a revision/further proceedings, filed by Devki Devi, auction proceedings were set aside, without any contribution by Hira Lal and Gurdayal. Devki Devi executed a will and bequeathed her share in the partnership and factory premises in favour of Asha Bhardwaj-defendant No.2. However, as the partnership was never dissolved, Gurdayal and Hira Lal were incompetent to execute the sale deeds and even otherwise were no longer co-sharers of the land and were mere partners of Geeta Potteries. The sale deeds, executed in favour of Maharaj Kishan, are illegal and void. It was further asserted that Mohan Lal, defendant No.1, sold plots out of his own land, which was in his exclusive possession. After considering the arguments, raised by respective parties, the trial Court held that though no injunction could be granted against a co- sharer, but as rights as to separation of interest have to be determined in partition, parties were directed to maintain status quo. Aggrieved by the aforementioned order, the petitioners filed an appeal. The Additional District Judge, Gurgaon, vide order dated 16.5.2007, dismissed the appeal and affirmed the order, dated 21.4.2006. Counsel for the petitioners contends that as the Courts below have held that parties are co-sharers, no injunction, whether in the shape of an order of status quo or otherwise, could have been issued. It is settled C.R No. 3910 of 2007 ::4:: law that as co-sharers own and possess every inch of the joint property, for and on behalf of all co-sharers, a co-sharer cannot claim exclusive possession or an exclusive right to enjoy the property to the hostile exclusion of other co-sharers. It is further submitted that a co-owner in exclusive possession of the joint property or a part thereof can raise construction, enjoy the property and even alienate the property so long as it does not exceed his share. The learned Courts below, by directing parties to maintain status quo, have, in essence, issued an injunction against a co- owner. Reliance for the above assertions is placed upon two Division Bench judgments of this Court reported as Sant Ram Nagina Ram vs Daya Ram Nagina Ram and others, AIR 1961 Punjab 528 and Bachan Singh vs Swaran Singh, 2000 (3) Civil Court Case 2 (P&H). Counsel for the respondents, however, submits that the rule that an injunction cannot be issued against a co-sharer is not absolute. Where a co-sharer asserts ouster of the rights of other co-owners so as to negate the assertion of joint ownership and possession, such a co-sharer may be injuncted from asserting exclusive rights of enjoyment qua the joint property. It is further submitted that a perusal of preliminary objections No.1 and 2 of the written statement clearly reveals that the petitioners specifically assert that the respondents are not co-sharers in the land in question. It is further asserted that as the petitioners have clearly pleaded ouster of the respondents' rights as co-sharers, the Courts below did not commit any error in directing the parties to maintain status quo. I have heard counsel for the parties and perused the impugned orders. The facts of the case do not merit repetition, as the controversy, C.R No. 3910 of 2007 ::5:: in essence, is whether an injunction can be issued against a co-sharer and if so in what circumstances. The law as it obtains and applies to co- owners/co-sharers has been succinctly explained in Sant Ram Nagina Ram's case (supra), wherein, while considering the rights and liabilities of co-sharers as also the plea of ouster, a Division Bench held as follows :- “78. The weight of the authorities and the principles which have been discussed above, give rise to the following propositions- (1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of the 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 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 C.R No. 3910 of 2007 ::6:: 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 of 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 necessary in such a case to show that special damage has been suffered.” Thereafter, after propounding the aforementioned principles, C.R No. 3910 of 2007 ::7:: the Hon'ble Division Bench, held that as the defendants therein had openly denied joint ownership and had asserted exclusive title, the decree, passed by the trial Court for demolition of the structure, was justified, as the defendant had raised construction despite the injunction order. The Division Bench approved the grant of injunction as the defendant therein had pleaded ouster of the rights of other co-owners. The dispute once again came to be considered before a Division Bench of this Court in Bachan Singh's case (supra), wherein, after considering the entire gamut of the law, in the context of a plea of ouster, the Division Bench held as follows :- “15. On a consideration of the judicial pronouncements on the subject, we are of the opinion that : (i) a co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of co-owner out of possession. (ii) Mere making of construction or improvement of, in, the common property does not amount to ouster. (iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the C.R No. 3910 of 2007 ::8:: value and utility of the property. (iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co- owner out of possession can seek an injunction to prevent such act which is detrimental to his interest.” It is, therefore, apparent that as a general rule, an injunction shall not issue against a co-sharer in possession. The said rule is, however, not absolute and admits to certain exceptions. Where by acts that are prejudicial or detrimental to or adverse to the interest of other co-owners or where a co-owner in possession commits such acts as would diminish the value and utility of the property, the other co-sharers may, the circumstances permitting, be granted an injunction against a co-sharer in possession. In all other situations, the remedy of a co-sharer is to pray for partition of the suit property by approaching the appropriate forum, whether revenue or civil Courts, dependent upon the nature of the property. The question that merits consideration in the present petition is whether the pleadings, available on record, warranted the issuance of directions to the parties to maintain status quo with respect to construction and alienation during the pendency of the suit for partition. A considered appraisal of the pleadings discloses that the petitioners raised an unequivocal and emphatic assertion, in preliminary objections No.1 and 2 of their written statement that parties are not co- sharers and the plaintiffs have no locus standi to file the suit. It is further asserted that as Hira Lal and Gurdial had ceased to be co-owners, they had no right, title or interest in the suit property that could be validly C.R No. 3910 of 2007 ::9:: transferred to Maharaj Kishan by way of sale deeds, dated 26.7.1971 and 15.7.1971. The written statement, when read in its entirety, discloses an unequivocal disavowal of the joint ownership as also the status of the respondents as co-sharers. The petitioners, infact, assert sole and exclusive ownership and possession over the suit property. The averments in the written statement, in my considered opinion, are sufficiently emphatic to infer a plea of ouster of the rights of other co-owners and an attempt to negate the presumption of joint possession that flows from the status of parties as co-owners. As the petitioners seek to assert sole and exclusive ownership and possession over the suit land, it was imperative for the Courts below to protect the property during the pendency of the suit to prevent its dissipation. The learned trial Court rightly relied upon a judgment of the Hon'ble Supreme Court in Maharwal Khewaji Trust (Regd) Faridkot vs Baldev Dass, 2005(1) CCC 430 (SC), wherein the Hon'ble Supreme Court held that a Court should not permit the nature of the property to be changed or alienated so as to prevent multiplicity of proceedings and further complications that would lead to never ending trials and executions. In view of what has been discussed herein above, the learned Courts below rightly directed parties to maintain status quo. Consequently, the revision petition is dismissed with no order as to costs. ( RAJIVE BHALLA ) March 3rd, 2008. JUDGE `kk'