R.S.A.No. 499 of 1998 {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 499 of 1998 Date of Decision:July 14, 2009 Piara Singh ---Appellant versus Gurdev Singh ---Respondent Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.Arvind Singh,Advocate, for the appellant Mr.H.S.Dhindsa, Advocate, for the respondent. *** SABINA, J. Plaintiff –Piara Singh filed a suit for permanent injunction restraining the defendant from interfering in the suit property. Additional Civil Judge ( Sr. Division), Nawanshahr vide judgment and decree dated 27.3.1996 dismissed the suit of the plaintiff. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by Additional District Judge, Jalandhar vide judgment and decree dated 3.11.1997. Hence, the present appeal. The facts of the case as noticed by the learned Additional R.S.A.No. 499 of 1998 {2} District Judge, in paras 2 and 3 of its judgment read as under:- “Shorn of unnecessary details, the facts of the case are that Piara Singh plaintiff instituted a suit on the allegations that Amar Singh deceased was original owner in possession of the disputed residential and landed property situated at village Naura as detailed in the head note of the plaint. In addition to those properties,Amar Singh also owned one residential room situated at Ludhiana and land mesuring 18 acres situated in U.P. Besides another residential house in village Naura.Amar Singh aforesaid died in the year 1975 and Piara Singh plaintiff and Gurdev Singh defendant who are his sons succeeded to his estate on the basis of will executed by the deceased in their favour. Plaintiff claims that Gurdev Singh defendant has been residing at Ludhiana since the year 1954-55 and that with the intervention of the mother of the parties a family settlement was made in the year 1976 on the basis of which the disputed property at Naura fell to the share of the plaintiff and the plaintiff is owner in possession of those properties. Further that the land in dispute was earlier lying under mortgage and the plaintiff alone redeemed the disputed property and he was in fact owner in possession of the disputed property consisting of a house and landed property at village Naura as detailed in the head note of the plaint on the basis of family settlement between the parties. urther that the plaintiff raised construction of the house by spending considerable amount from his pocket and the defendant had not concern with R.S.A.No. 499 of 1998 {3} the same. However, the defendant nor threatened to forcibly dispossess the plaintiff from the disputed property but had no right to do so. On the aforesaid allegations, the main suit was filed by the plaintiff claiming to be owner in possession of the disputed property with a prayer for prohibitory injunction that the defendant be restrained from interfering with his possession in disputed properties or any other relief the court deemed proper. The defendant appeared in the court and contested the suit. In the written statement filed by him, it was admitted that the disputed properties originally belong to Amar Singh deceased father of the parties. It was, however, pleaded that the entire construction of the disputed property was raised by Amar Singh deceased and that the disputed property jointly belong to both the parties. It was denied whether the plaintiff raised any construction on the disputed property from his own pocket. It was pleased that the land in U.P. was sold by both the brothers i.e. the plaintiff and the defendant and the sale consideration was equally divided between them Further that mutation of the disputed property was sanctioned in favour of the plaintiff and the defendant on the basis of will executed by Amar Singh deceased in their favour and both of them had equal share in the disputed property and were jointly in possession of the same. It was denied whether the plaintiff was the sole owner of the disputed property. It was also pleaded that the suit as filed by the plaintiff was not maintainable in the R.S.A.No. 499 of 1998 {4} present form nor had the plaintiff any locus standi to file the present suit. It was also pleaded that the suit was not properly valued for the purpose of court fee and jurisdiction and that the same was bad for non-joinder of necessary parties. Various other allegations as made in the plaint were denied by him.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the plaintiff is in possession over the suit properties and is entitled to the injunction prayed for? OPP (2)Whether the suit is not maintainable in the present form? OPD (3)Whether the plaintiff is barred by his act and conduct to file the present suit? OPD (4)Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD (5)Whether the plaintiff has no locus standi to file the present suit? OPD (6)Whether the suit is bad for non-joinder of necessary parties? OPD (7)Whether the site plan produced by the plaintiff is correct? OPD (8)Relief After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff-Piara Singh had filed a suit for permanent injunction restraining defendant from interfering in the suit property. However, as per R.S.A.No. 499 of 1998 {5} the revenue record i.e. copy of jamabandi for the year 1989-1990, the suit property is in joint possession of the parties. It is settled proposition of law that every co-sharer is deemed to be in possession of every inch of the joint property and one co-sharer cannot seek an injunction against the the co- sharer. The plaintiff has relied upon Ex. P-2 vide which he had got the land in dispute redeemed by making payment of the mortgaged amount. However, whenever a co-sharer get the mortgaged property redeemed, it is deemed to be for the benefit of the all the co-sharers. Although the defendant in his cross examination, at one instance, admitted that the house in dispute was in possession of the plaintiff, but thereafter he denied the said fact and stated that the plaintiff was not in exclusive possession of the property in dispute. In these circumstances, it cannot be said that the presumption of truth attached to the entry in the jamabandi had been duly rebutted. Since the parties are shown to be owners in joint possession of the suit property, the courts below had rightly held that no injunction could be granted in favour of the plaintiff. 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. (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. R.S.A.No. 499 of 1998 {6} (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 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 R.S.A.No. 499 of 1998 {7} 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.” Hence, the impugned judgments and decrees of the courts below do not call for any interference. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE July 14, 2009 PARAMJIT