R.S.A. No. 1333 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 1333 of 2008 Date of Decision: December 3, 2009 Surjit Kaur …..Appellant Vs. Sarup Singh and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Harkesh Manuja, Advocate for the appellant. Mr.S.K. Jain, Advocate for the respondents. -.- M.M.S. BEDI, J. Plaintiff- appellant has preferred this second appeal against the judgment and decree passed by Additional District Judge, (Fast Track) Sirsa, dated April 8, 2008 reversing the judgment and decree passed by the trial Court dated November 24, 2005. R.S.A. No. 1333 of 2008 [2] Briefly stated the facts relevant for adjudication of this appeal are that the plaintiff had filed a suit for permanent injunction seeking to restrain the defendant- respondents from dispossessing the plaintiff from actual physical possession over the land measuring 6 kanals 17 marlas comprised in Sq. No. 169 Killa No. 17 (6-17) situated in Village Phaggu, Tehsil and District Sirsa. The plaintiff claimed that she entered into possession of the suit land measuring 6 kanals 17 marlas as a tenant in Kharif 1982 and that she purchased the said land vide registered sale deed dated June 17, 1983 as such she became the owner in possession of the suit land. The defendant- respondent No.1 is a co-sharer in the joint khewat measuring 91 kanals 8 marlas Khewat No.762, khatuni No.1228 to 1233 in which the suit land is included. Defendant- respondent No.2 is the son of defendant No.1 whereas defendant No.3 claims himself to have purchased some share in the abovesaid khewat although his name is not mentioned in the revenue record as co-sharer. In the written statement filed by defendant- respondents No.1 and 2, it was pleaded that the plaintiff- appellant is neither a co-sharer nor in possession of the suit land. She has got no concern or connection with the suit land. The purchase of the property in dispute by the plaintiff in specific khasra number as denied, pleading in the written statement that the suit land is owned by several co-sharers as such no specific Killa number could be sold. The other defendants have filed separate joint written statement pleading that the sale deed dated June 17, 1983 is wrong and based on fraud as the vendor did not have any title to sell the suit land to the plaintiff being R.S.A. No. 1333 of 2008 [3] not the owner as such the mutation in favour of the plaintiff was rejected by the revenue authorities. It was pleaded that in case Sukhdev Singh, defendant No.3 purchased 1/36th share out of the land measuring 91 kanals 8 marlas being 2 kanals 10 marlas vide sale deed dated May 16, 2000 from Joginder Singh son of Rana Singh. Similarly he already purchased land measuring 2 kanals 10 marlas from vendor equal to 1/36th share from same Khewat number on June 27, 2000 vide sale deed dated June 27, 2000. The parties contested the suit on the following issues:- “1. Whether the plaintiff is entitled for relief of permanent injunction against the defendants, as prayed for? OPP. 2. Whether the suit of the plaintiff is not maintainable in the present form, as alleged? OPD. 3. Relief.” The trial Court on the basis of the statements of PW1 Gurcharan Singh, PW2, Bhajan Singh, PW3 Sher Singh and the documents Ex.P1 to P-14 and the statements of DW1 Bhag Singh, DW2 Harnek Singh and DW3 Sukhdev Singh and other documentary evidence arrived at a conclusion on appreciation of evidence that plaintiff- appellant is in possession of the suit land and her possession could not be disputed by the defendants by any kind of evidence. On the basis of appreciation of evidence on issue No.1, it was held that plaintiff being in possession of the suit land, could not be thrown away from the suit land forcibly and it was held that Vendee Bhag Singh was not owner of the land measuring 6 kanals R.S.A. No. 1333 of 2008 [4] 17 marlas, therefore, plaintiff could not claim herself to be the owner of the suit property but her possession had to be protected as such was partly decreed. Issue No.2 was decided against the defendants holding that the suit was maintainable. On the basis of findings on issue Nos. 1 and 2, decreed for injunction was granted in favour of the plaintiff restraining the defendant- respondents from causing any interference in the possession of the plaintiff except in due course of law. It was observed that the defendant- respondents shall be at liberty to seek remedy for eviction of the plaintiff from the appropriate authorities. Two appeals were filed one by defendant Sukhdev Singh and another by Buta Singh as well as by the appellant against the judgment and decree dated November 24, 2005. Vide impugned judgment and decree, the lower Appellate Court dismissed the appeal of plaintiff- appellant whereas the appeal of Sukhdev Singh and other was accepted and judgment and decree of the trial Court was set aside. The lower Appellate Court has held that vide Ex.P8, the plaintiff- appellant had purchased the suit land measuring 6 kanals 17 marlas whereas Bhag Singh was not owner of the same, rather he was owner to the extent of 3 kanals 16 marlas of land. The operative part of the judgment is reproduced as under:- “The present suit of the appellant is suit for possession and there is no dispute of ownership but taking into R.S.A. No. 1333 of 2008 [5] consideration the evidence which has been produced by both the parties, it is crystal clear that the appellant may be in possession over the suit property to the extent of 3 kanals 16 marlas and as per the revenue record, she is in possession of 6 kanals 7 marlas of land and in this way till partition of the suit land take place, she is entitled to keep possession of the suit land despite of the fact that she has been shown in possession of more land than her share. However, it is pleaded by appellant herself that respondent No.1 is co-sharer in the suit property, therefore, a co-sharer can not seek relief of injunction against other co-sharer and in this way, the finding of learned lower Court on this issue is hereby reserved and she is not entitled to the relief of injunction.” The lower Appellate Court on the basis of appreciation of evidence has arrived at a conclusion that the possession of the plaintiff- appellant in 3 kanals 16 marlas of land is in the capacity as owner though she has purchased 6 kanals 17 marlas vide sale deed Ex.P8, her possession is over the suit property as a gair murasi tenant is reflected from revenue entry Ex.P.4. The relief of injunction has been declined to the plaintiff- appellant despite she having been found owner to the extent of 3 kanals 16 marlas but in possession of 6 kanals 17 marlas of part of the suit land, on the ground that a co-sharer cannot seek relief of injunction against other co- sharer. The substantial question of law which is involved in the present R.S.A. No. 1333 of 2008 [6] case is whether the plaintiff who has been in possession of part of the property in dispute as a co-sharer and in part of the property as tenant, is not entitled to protect her possession against the other co-sharers by seeking a relief of injunction? The rights and liabilities of co-sharers inter-se had come for consideration before a Full Bench of this Court in Bhartu Vs. Ram Sarup, 1981 PLJ 204, wherein it was held that rights and liabilities of co-sharers inter-se are (1) A co-owner has 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 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 by the other co-owners, it is not open to anybody to disturb the arrangement without the consent of others except by filing a suit for partition. R.S.A. No. 1333 of 2008 [7] The legal position clarified in the abovesaid Full Bench judgment that co-sharer in possession exclusively of some portion of joint holding not more than his share is entitled to continue in possession till joint holding is partitioned and that a transferee under Section 44 of the Transfer of Property Act gets right of transferor to joint possession and to enforce partition whether property sold is fractional share or specified portion. In view of the ratio of Bhartu’s case (supra) it was held that sale of specific portion of land out of joint holding by one of the owners is nothing but sale of a share out of joint holding. Applying the ratio of Bhartu’s case (supra), the plaintiff- appellant being a co-sharer in the joint khata to the extent of 3 kanals 16 marlas and being found in possession of the same is entitled to retain the possession of her share. In case she is in possession of land more than her share, she can always be dispossessed from specific khasra number by way of seeking possession by partition by other co-sharers. In view of the above circumstances, the appeal is allowed and the judgment and decree passed by the lower Appellate Court dismissing the suit of the plaintiff- appellant is hereby set aside. The judgment and decree passed by the trial Court on November 24, 2005 is restored and it is clarified that the plaintiff will not be dispossessed from land measuring 6 kanals 17 marlas except by due process of law. December 3, 2009 (M.M.S.BEDI) sanjay JUDGE