RSA No.2619 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2619 of 1987 Date of decision: 4.3.2010 Amar Nath ............Appellant Versus Dr. Tejinder Singh and others .........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Amit Jain, Advocate for Mr. Arun Jain, Sr. Advocate for the appellant. --- 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. This is a second appeal filed by the plaintiff/appellant, assailing the judgment and decree dated 2.11.1983 passed by the learned trial Court and judgment and decree dated 31.3.1987 passed by the learned first Appellate Court/Addl. District Judge, Amritsar, thereby confirming the judgment and decree of the learned trial Court, dismissing the suit. 2. The brief facts of the present case are that the disputed land measuring 4 kanals 16 marlas 123 sq. ft. situated at Tarn Taran RSA No.2619 of 1987 2 is the joint property in which the plaintiff and also defendants No.5 and 6 owned 1/3rd share while the defendants No.2 to 4 and 7 owned the remaining 2/3rd share in the same. The plaintiff is, however, in exclusive possession of the entire disputed land as co-sharer; Dr. Tejinder Singh defendant No.1 in connivance with Satpal, defendant No.5, threatens to enter possession of a portion of the disputed land on the front side and intends construction on the same but he has no right to do so; it is also alleged that land in dispute is chahi and if defendants No.1 and 5 succeeded in raising construction on any portion of the disputed land that will change the nature and character of the disputed land; none of the co-sharers has the right to raise construction or dispose of any specific portion of the disputed land to the exclusion of others. 3. Defendants contested the suit. It was alleged by defendant No.1 that he has no concern with the disputed land nor does he intend raising any construction on the same. It was further alleged by defendant No.5 that the land measuring 30 kanals 15 marlas, including the disputed land, was earlier the joint property of the plaintiff and various other co-sharers; later on, the land measuring 18 kanals i.e. upto the depth of 240 feet was devided between the plaintiff and various other co-sharers; thereupon all the co-sharers raised boundary walls on the land falling to their share. The plaintiff and his two brothers namely Sat Pal and Joginder Pal, defendants No.5 and 6, got six kanals of land in that family partition; they also subsequently partitioned the same; the plaintiff, then raised construction on his share in the disputed land and was now estopped by his own act and conduct from filing the present suit; it was further pleaded that in the aforesaid family partition he got about 2 kanals of RSA No.2619 of 1987 3 land and had started construction in that land; the plaintiff has no concern with the same nor could he obstruct him in raising construction on the land in his possession; it was also pleaded that various co-sharers had also raised construction on the property which fell to their shares in the family partition and that the suit of the plaintiff was not competent. 4. Defendants No.8 to 10 by filing separate written statement also contested the suit and alleged that they purchased a specific portion of the disputed land from Sat Pal, defendant No.5, by means of 3 registered sale deeds dated 29.10.1981, 4.11.1981 and 29.10.1981. 5. On the pleadings of the parties, following issues were framed by the learned trial Court:- “1. Whether plaintiff is a co-owner and in possession over the suit land?OPP. 2. Whether plaintiff is entitled to the relief of injunction prayed for?OPP. 3. Whether the disputed land has been partitioned through a family partition as alleged?OPD. 4. As plaintiff estopped from bringing the present suit as alleged?OPD. 5. Relief” 6. Learned trial Court dismissed the suit filed by the plaintiff on the ground that parties are in possession of their specific share on the basis of family settlement. It was also observed by the learned trial Court that plaintiff has built a kothi on the portion of the joint property and is in exclusive possession of the same on the basis of private settlement. Now, plaintiff wants to put obstruction in the construction of defendants over the portion which has fallen in the RSA No.2619 of 1987 4 specific portion of the defendants under the settlement. 7. Feeling aggrieved by the judgment dismissing the suit of the plaintiff, he preferred first appeal. Learned first Appellate Court upheld the findings of fact recorded by the learned trial Court. Learned first Appellate Court while relying upon the judgment of this Court reported in 1981 PLJ 204 in that matter of Bhartu v. Ramsarup, further held that where co-owners are in possession of separate parcels under an arrangement consented by others, that arrangement cannot be disturbed without the consent of others, saved by suit for partition, and a co-sharer in exclusive possession of some portion of the joint holding not more that his share, was entitled to continue in possession till partition and could transfer that portion subject to adjustment at the time of partition. 8. In view of the law laid down by this Court in the matter of Bhartu (supra), I am in full agreement with the learned first Appellate Court that co-owners in possession of several separate parcels under an arrangement consented by others cannot be disturbed by other co-sharers except by filing a suit for partition. A co-sharer, in exclusive possession of a specific portion with the consent of other co-sharers, can use that portion according to his own requirements and wishes and cannot be restrained by other co-sharers. If a co- sharer has any grievance against another co-sharer raising construction over property fallen in his exclusive possession under an agreement, then he cannot file suit for injunction, he has to seek his remedy by filing suit for partition 9. Undisputedly, plaintiff/appellant has built a Kothi on the specific portion of the joint property which has fallen under his possession and share with the consent of other co-sharers, now he RSA No.2619 of 1987 5 wants to restrain other co-sharer to raise construction over the portion which has fallen in his share as per the private arrangement, which is not permissible under the law. 10. In view of the above, in my humble opinion, no substantial question of law arises in the present appeal. Question, suggested by learned counsel for the appellant “as to whether a co-sharer can raise construction over the particular portion of joint property under private settlement” is no more Res integra in view of Full Bench judgment of this Court in the case of Bhartu (supra). 11. The appeal being devoid of merit, must fail, and the same is dismissed with costs through out. (ALOK SINGH) 04th March, 2010 JUDGE ashish