Regular Second Appeal No.254 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 254 of 2009 (O&M) Date of Decision: July 27, 2009 Dalip Singh ...........Appellant Versus Smt. Jyoti @ Savita and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Kul Bhushan Sharma, Advocate for the Appellant. ** Sabina, J. Dalip Singh-plaintiff filed a suit for permanent injunction . The suit of the plaintiff was decreed by the Civil Judge (Junior Division) Rewari vide judgment and decree dated 6.2.2007. The appeal filed by the defendants was allowed by the Additional District Judge, Rewari vide order dated 14.8.2008. Hence, the present appeal by the plaintiff. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment reads as under:- “2. Brief facts of the case are that plaintiff and proforma defendants are joint owners as per their share in the land comprised in khewat no. 52/50 khasra no. 154/1(0-7) situated in the revenue estate of village Garhi. The plaintiff has been owner in possession of half share in the above land. It is the case of the plaintiff that defendants no. 1 and 2 are bent upon to oust the plaintiff from the suit property by musclar power by taking of the valuable piece of land adjacent to the road out of khasra no. 154/ Regular Second Appeal No.254 of 2009 (O&M) 2 (0-7). It was further pleaded that defendants have got no right or title to oust the plaintiff out of specific portion of the land adjacent to the road. Plaintiff requested defendants no. 1 and 2 several times to desist from their illegal design but they finally refused on 10.9.2006. Hence, the suit. 3. On notice, contesting defendants No. 1 and 2 appeared through their counsel and took preliminary objection in their written statement regarding estoppel, cause of action, private partition etc. On merits, it was specifically denied that parties to the suit have been joint owners over the suit property. In fact in khewat no.52 there are 94 kanals but plaintiff has not given the full description of the entire property. It was specifically denied that plaintiff has ½ share in the disputed land. His share along with his tubewell is in separate in khewat no.52. It was further pleaded that suit land was in possession of Kanwar Singh defendant No.6 and his elder brother Dev Karan who has not been impleaded in the present suit. Killa no.154/1 is abutting to way and its width is about 33''. Plaintiff and other defendants have more share than 2 acres of land along with main road. Defendants no.1 and 2 are in exclusive possession over killa no.154/1. Their building material is lying upon this. It was further pleaded that disputed property was purchased by defendants no. 1 and 2 vide sale deed dated 31.3.1999. A private partition was effected between all co-sharers but no share was allotted to plaintiff out of killa no. 154/1. It was further pleaded that plaintiff has already constructed pucca houses on khasra no.83,85,71. So he cannot Regular Second Appeal No.254 of 2009 (O&M) 3 take the plea of joint possession over killa no. 154/1. Rest of the averments of the plaintiff were specifically denied and dismissal of the suit was prayed for. On the pleadings of the parties, the following issues were framed by the trial Court:- "1. Whether the property in dispute mentioned at para no.1 of the plaintiff is joint property of the parties to the suit?OPP 2. Whether the plaintiff is entitled to decree for permanent injunction against defendants no. 1 and 2 on the ground taken in the plaint?OPP 3. Whether the plaintiff is estopped by his own act and conduct to the file the present suit?OPD. 4.Whether the suit is bad for non-joinder of necessary parties?OPD 5.Whether the plaintiff has no cause of action to file the present suit?OPD 6. Relief.' After hearing the learned counsel for the parties, I am of the opinion that this appeal is devoid of any merit. The Khasra number in dispute is 154/1 and, admittedly, as per the revenue record, the said Khasra number is jointly owned and possessed by the owners. 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. Regular Second Appeal No.254 of 2009 (O&M) 4 (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 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 Regular Second Appeal No.254 of 2009 (O&M) 5 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. Case law reviewed.” Thus, it is a settled proposition of law that a co-sharer can not seek injunction against the other co-sharer with regard to the property which is joint in their possession. Learned counsel for the appellant, during the course of arguments, has stated that the partition proceedings are going on. In these circumstances, no ground for interference is made out. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge July 27, 2009 arya Regular Second Appeal No.254 of 2009 (O&M) 6