HIGH COURT OF JAMMU AND KASHMIR AT JAMMU C. Rev. No. 08/2007 CMP Nos. 08/2007 & 15/2007 Date of decision: 04.02.2009 ______________________________________________________ Kabla Singh and anr Vs. Pari Ram and ors Coram: MR. JUSTICE J. P. SINGH, JUDGE. Appearing Counsel: For the Petitioner(s) : Mr. B. B. Kotwal, Advocate. For the Respondent(s) : Mr. K. C. Sharma, Advocate. i) Whether approved for reporting in Press/Journal/Media : Yes ii) Whether to be reported in Digest/Journal : Yes __________________ _____________________________________ _____ Respondents had filed a suit seeking, a decree of declaration that Gift deed dated 04.02.2002 for land measuring 10 kanals 13 marlas comprised in Khasra no. 306, and 11 kanals comprised in Khasra no. 307, situated at village Kotla Tehsil Reasi, executed by Kabla Singh in favour of his son Karan Singh was null and void besides a decree for permanent prohibitory injunction restraining Kabla Singh and others from raising construction on land comprised in Khasra nos. 305, 306 and 307 and from alienating it, by any mode whatsoever, pleading, inter alia, that the parties to the suit being co- sharers, Kabla Singh-petitioner no. 1 had no authority to gift away the land to his son when he was not the exclusive owner thereof. Kabla 2 Singh had been alleged by the respondents to have sold more than 70 kanals of land out of land measuring 139 kanals 01 marla comprised in Khasra no. 305, i.e., much beyond his share in the Shamlat land comprised in Khasra no. 305. Decree for permanent prohibitory injunction had been sought on the premise that the petitioners-defendants had threatened to sell the land and change the nature thereof by raising construction over it. An application for issuance of interim injunction too had been filed by the respondents-plaintiffs, seeking a restraint order against the petitioners-defendants not to raise any construction over, change the nature of, and alienate in any manner whatsoever, the suit land, during the pendency of the suit. Plaintiffs had urged that in case the injunctive directions were not issued, irreparable loss which may not be compensated by costs would be caused to them. Besides disputing the maintainability of, and the right of the plaintiffs to maintain the suit, on various grounds, the petitioners- defendants had submitted that the plaintiffs-respondents were not in possession of the suit land, and even if the plaintiffs’ case of being the co-sharers in the land had to be believed, a co-sharer, in possession of the property cannot be deprived of his right to use the land in his possession; the only course open to the other co-sharer(s) being – to seek partition. 3 The trial court did not find prima facie case in favour of the respondents and, accordingly, dismissed their application seeking injunctive directions. It, however, directed the petitioners-defendants to furnish undertaking that they would not dispose of the land comprised in Khasra nos. 306 and 307 and in case some new construction was raised by them in the land during the pendency of the suit, it would be removed/dismantled in case the plaintiffs succeeded in the suit. Upsetting the trial court’s judgment and finding a prima facie case in favour of the plaintiffs, the Appellate court has restrained the petitioners-defendants from alienating the suit land and raising construction thereon till final disposal of the suit. Aggrieved by the Judgment of the Appellate court, petitioners- defendants have approached this Court for setting aside the Appellate Court’s order. I have heard learned counsel for the parties and considered their submissions in the light of the case law cited at the Bar. While allowing plaintiffs’ application, and issuing injunctive directions against the petitioners-defendants, the Appellate Court had taken two factors into consideration, viz., (1) the pleadings of the parties and the documents on the records indicated that the parties were co-sharers in land comprised in Khasra nos. 306 and 307 and (2) 4 that no co-sharer has any right to raise construction on the joint property, without the consent of the other co-sharer(s). Insofar as the first factor which had weighed with the Court is concerned, there is no denying the fact that there are documents on records which do prima facie indicate the parties to be the co-sharers of the land in question. Insofar as the second ground, that a co-sharer cannot build upon joint property without the consent of the other co-sharer, which had weighed with the court while issuing restraint order against the petitioners-defendants, is concerned, suffice it would be to say that the proposition propounded by the Appellate Court may not be wholly correct, for there are some exceptions to the above proposition which were required to be taken into consideration by the Appellate court while considering issuance or otherwise of restraint order against the petitioners. There are three essential rights which flow from owner-ship, i.e., (1) Right to possession (2) Right to enjoyment and (3) Right to dispose. All these three essentials are satisfied in the case of a co- sharer of land. All co-sharers have equal rights and co-ordinate interest in the property; though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co- owner has, in theory, interest in every infinitesimal portion of the 5 subject matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, and to use it, jointly with others. Jurisprudentially, it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part- owner or a fractional owner of the property. The position will change only when partition takes place. (please see Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335). In case a co-owner wants to raise construction on the land in his possession, he may be free to do so, and when a division of co- ownership property takes place, such co-owner can claim allotment of that portion to him. In case construction over the joint property is objected to by the other co-owners, the option open to him is to get the property partitioned. Although the Appellate Court has said that it was prima facie satisfied that the plaintiffs would suffer irreparable loss in case injunction was refused and balance of convenience was also in their favour yet neither any such facts emanating from the records justifying such conclusion nor reasons in support thereof have been spelt out in the judgment. 6 Reasons are live-links between the mind of the decision maker, to the controversy in question and the decision arrived at. The importance of recording reasons by a Judicial authority is that if the decision reveals “in-scrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the courts to perform their appellate/revisional function in adjudging the validity of the decision. That apart, the affected party has a right to know as to why the decision had gone against it. It is thus the requirement of the rules of natural justice as well, that the order made by an authority is supported by reasons, for failure to give reasons may amount to denial of justice. Order passed by the Appellate Court may not thus be justified in the absence of reasons which had weighed with it in arriving at the conclusion that in case injunction sought for by the respondents was not issued, the plaintiffs would suffer an irreparable loss in case the defendants raised construction on the suit land. Admitted possession of Kabla Singh, one of the co-sharers, over land comprised in Khasra nos. 306 and 307 for about forty years and his using the same and enjoying usufruct thereof for the aforementioned period, appears to have escaped the notice of the Appellate Court while considering issuance or otherwise of injunctive directions against the co-sharer who was in exclusive possession of the property. 7 While considering an application for grant of injunction, the Court is required not only to take into consideration the basic requirements/elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable loss; it must also take into consideration the conduct of the parties to the suit as well. Grant of injunction is an equitable relief. A person who maintains silence for long time and allows another to deal with the property exclusively and enjoy its usufruct, without any demur, may not ordinarily be entitled to seek restraint directions against the co- sharer in possession and user of the property. Grant or refusal of injunction has serious consequences depending upon the nature thereof. The courts, while dealing with injunction matters, are, therefore, necessarily required to make all efforts to protect the interests of the parties. Application of mind on the part of the courts, keeping in view the facts and circumstances of each case, they are dealing with, is, therefore, imperative. The Appellate court has issued injunctive directions against the petitioners without taking into consideration the nature of construction which was apprehended to be raised, the portion of the land on which it was intended to be so raised and more importantly whether raising of such construction by the co-sharer in possession of the land, was 8 likely to cause any such irreparable loss which may not be compensated by costs. In a nut shell, all that, therefore, appears from the perusal of the Appellate court’s judgment is that it had proceeded to apply abstract proposition of law while considering issuance of restraint directions against the petitioners and had omitted to consider the facts and circumstances of the case appearing from the records. The court is required to first ascertain the case set up by the plaintiffs and the defence thereto, make up its mind as to which of the two versions of the contesting parties was prima facie sustainable and thereafter, while considering issuance or otherwise of injunctive directions sought for by the parties, apply law thereto, keeping in mind the settled principles regarding issuance or otherwise of injunctive directions. Appellate Court has not taken into consideration all the aforementioned factors and has erred in applying abstract proposition of law without considering the affect of petitioners’ exclusive possession of about forty years over the land comprised in Khasra nos. 306 and 307, and the likelihood or otherwise of plaintiffs’ suffering irreparable loss which may not be compensated by costs, while issuing directions against the petitioners. Judgment passed by learned Additional District Judge, Reasi cannot thus be sustained. 9 Allowing this revision petition, learned Additional District Judge, Reasi’s – judgment dated 23.12.2006 is, accordingly, set aside remanding the appeal to it for fresh consideration and disposal in the light of the observations made hereinabove, in accordance with law. Parties through their learned counsel are directed to appear before the Appellate Court on March 07, 2009. (J. P. Singh) Judge Jammu February 04, 2009 Tilak, Secy.