C.R.No.2426 of 2011(O&M) #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.2426 of 2011(O&M) Date of decision: 13.5.2011 Sukhdev Singh and another ….Petitioners Vs. Gurdev Kaur ….Respondent CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. I.P.S Doabia, Advocate for the petitioners. Jaswant Singh, J C.M.No.12761-CII of 2011 Application is allowed. Annexure P.8 is taken on record. C.R.No.2426 of 2011 Defendant-petitioners through their general power of attorney have filed the present petition under Article 227 of the Constitution for setting aside the impugned order dated 1.2.2011 passed by learned District Judge, Jalandhar whereby the appeal of respondent-plaintiff against the order dated 7.12.2010 passed by learned Civil Judge (Jr. Division), Phillaur dismissing the application under Order 39 Rules 1 & 2 CPC has been allowed. Brief facts of the case are that the plaintiff-respondent filed a suit for permanent injunction restraining the defendant-petitioners from interfering into her peaceful possession and also from dispossessing the plaintiff from the suit property as well as further restraining the defendant- C.R.No.2426 of 2011(O&M) #2# petitioners from raising any construction over the double storey residential house. Along with the suit, an application under Order 39 Rules 1 & 2 CPC was filed by the plaintiff-respondent. Upon notice, reply to the main suit as well as application was filed by the defendants-petitioners opposing the contents of the same and inter alia submitted that the defendant No.1 is the co-owner of the husband of the plaintiff-respondent being real brother and as such the property is joint and no injunction can be granted against a co- owner. After hearing both the sides, learned trial Court dismissed the application under Order 39 Rules 1 & 2 CPC. On an appeal having been filed, the same was allowed by the learned District Judge, Jalandhar, hence the present petition. Learned counsel for the petitioners submits that the plaintiff- respondent has failed to prove on record that prima facie case is made out in her favour. It is further argued that neither any balance lies in favour of the respondent-plaintiff nor any irreparable loss is likely to be caused to her in case the interim injunction is not granted. After hearing learned counsel for the petitioner and perusing the paper book, this court does not find any merit in the petition and the same deserves dismissal. A perusal of impugned order dated 1.2.2011 reveals that record of the case was minutely examined by the learned District Judge, who came to the conclusion that prima facie the plaintiff-respondent is shown to be in exclusive possession of the property in dispute and relevant portion of the impugned order reads thus: “10. The perusal of the record shows that the case of the plaintiff is that Mohan Singh, her husband is exclusive owner of the house, but no document has been placed on the record, how C.R.No.2426 of 2011(O&M) #3# Mohan Singh became exclusive owner of the disputed house. No sale deed etc has been placed on the record. Similarly, defendant No.1 has stated that it is ancestral house and the house was constructed with the money sent by him from abroad and he is co- sharer alongwith Mohan Singh. The defendant has placed copy of the electricity bill, which is issued on 8.11.2010. On this bill words “Duplicate Bill” have been written. Copy of the death certificate has been placed on the record regarding death of Duni Chand son of Chanan Singh. Copies of some cheques etc of current account have been placed on the record by the defendant Sukhdev Singh. 11. On the other hand, the plaintiff has placed on the record copy of the site plan of the disputed property, copy of the ration card, copy of gas connection, copy of voter card and copy of the telephone bill to show their exclusive possession. Photographs have also been placed on the record to show the plaintiff's possession. All the documents placed on the record prima facie show that the plaintiff is in possession over the suit property whereas the electricity connection is in the name of defendant No.1 Sukhdev Singh. Sukhdev Singh defendant No.1 has placed on the record copy of the electricity bill, which he may have obtained from the office, as duplicate has been written on it. Secondly, this copy is of the electricity bill relating to the period during pendency of the suit. The case of the defendant is yet to be proved by evidence that the house was constructed with the money which was sent by him or he is co owner. For the grant of ad interim injunction, at this stage, the possession is to be seen. From the documents produced by the plaintiff, prima facie the plaintiff is shown to be in exclusive possession of the house.” Prima facie the plaintiff-respondent is shown to be in exclusive possession of the house in dispute, therefore, the learned District Judge has rightly held that in view of the judgment of Hon'ble Supreme Court passed in Appeal (Civil) No.1767 of 2008 titled Tanusree Basu & Ors v. Ishani Prasad Basu & Ors, an ad interim injunction can be granted against a co- owner if he is in exclusive possession of joint property. Reference in this C.R.No.2426 of 2011(O&M) #4# regard has been made to relevant observations made in certain paragraphs, which are reproduced hereunder: “12. There cannot be any doubt or dispute as a general proposition of law that possession of one co-owner would be treated to be possession of all. This, however, in a case of this nature would not mean that where three flats have been allotted jointly to the parties, each one of them cannot be in occupation of one co-owner separately. Xx xx xx 14. xx xx We are concerned in this case with a question whether if a co-owner was in specific possession of the joint property, he could be dispossessed therefrom without the intervention of the court. 15. xx xx If parties by mutual agreement entered into possession of separate flats, no co-sharer should be permitted to act in breach thereof.” Keeping in view the facts and circumstances discussed hereinabove, no illegality or perversity can be found with the impugned order warranting interference under Article 227 of the Constitution. However, taking into account the nature of dispute between the family members, it is hoped that the trial Court shall endeavour to conclude the trial of the suit expeditiously. Petition stands dismissed. May 13, 2011 ( JASWANT SINGH ) manoj JUDGE