IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2524 of 2010 Date of Decision: September 07, 2010 M/s Orient Craft Infrastructure Ltd. …Petitioner Versus Smt. Subhadra and others. …Respondents CORAM: HON’BLE MR. JUSTICE ALOK SINGH. 1. Whether reporters of local news papers may be Allowed to see judgment? Yes 2. To be referred to reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes Present: Mr. Ashwani Kumar Chopra, Senior Advocate with Ms. Sivani Sehgal, Advocate, for the petitioner. Mr. Chetan Mittal, Senior Advocate with Mr. Amit Jain, Advocate, for respondent Nos.1 to 4. Alok Singh, J. Plaintiff – petitioner herein has invoked jurisdiction of this Court under Article 227 of the Constitution of India assailing the order dated 02.02.2010 C.R. No. 2524 of 2010 passed by the learned Appellate Court/Additional District Judge, Gurgaon, whereby the Appellate Court has allowed the appeal filed by the defendants – respondents against the order dated 25.02.2009 passed by the learned Civil Judge (Junior Division) Gurgaon, on an application under Order 39 Rules 1 and 2 C.P.C. and permitted the defendants to raise the construction, clarifying that defendants shall not be entitled to any compensation regarding the construction raised by them and same shall be subject to the partition. The brief facts of the present case are that plaintiff – petitioner herein filed a suit for permanent prohibitory injunction against the defendants, inter-alia, alleging therein that plaintiff is co-owner and in joint possession of agriculture land bearing Khewat No. 30, Khata No. 48, Rect. No. 28, Killa No. 3/2(3-16), 8(8-0), 13 (8-0) total measuring 19 kanal 16 marlas, to the extent of 8 kanal 14 marlas situated in Village Bans Haria, Tehsil and District Gurgaon. The predecessor-in-interest of the defendants late Shri Jai Singh was owner of ½ share in the suit land. After the death of Shri Jai Singh on 4.4.1996, his ½ share was inherited by defendants and his three daughters, namely, Smt. Usha, Kiran Bala and Smt. Nisha vide mutation No. 1134. The said sisters of defendants 2 C.R. No. 2524 of 2010 have sold their entire 3/16 share to the plaintiff vide registered sale deed dated 23.06.2006 for valuable sale consideration and since then the plaintiff and defendants are co-owners and in joint possession of the suit land. The said land has not been partitioned till today either orally or mutually or by metes and bounds and the parties to the suit are still co-owners in joint possession of the same. Every co-sharer has right on every inch of the joint holdings. No co-sharer can be legally allowed to diminish the value and utility of the joint holding by changing nature and by raising any sort of construction over any specific portion of the land and encroaching upon joint holding without partition of the land by metes and bounds. An application seeking ad interim injunction under Order 39 Rules 1 and 2 C.P.C. was also moved along with the plaint. Defendants filed their written statement and reply to the ad-interim application and it has been stated by the defendants that suit of the plaintiff is not maintainable. Defendants have already filed suit prior in time against the vendors of the plaintiff in which the plaintiff had already moved an application under Order 1 Rule 10 C.P.C. It is further contended by the defendants that plaintiff is the big builder and wants to grab the 3 C.R. No. 2524 of 2010 property of the defendants by putting all sort of pressures on the defendants. It was further contended that suit for injunction is not maintainable. Learned Civil Judge (Junior Division), Gurgaon, vide order dated 25.02.2009 allowed the ad-interim injunction application moved by the plaintiff and has held that defendants cannot raise the construction over any portion of the suit land without getting the same partition. It was further held by the learned Civil Judge that plaintiff is the co-owner and even if vendor of the plaintiff had sold more then his share even then sale to the extent of their share is legal and valid. However, in appeal, learned Additional District Judge reversed the order of the learned trial Court and allowed the defendants to raise construction with this condition that defendants shall not be entitled to any compensation regarding the construction raised by them which shall be subject to the partition. I have heard learned counsel for the parties and have perused the record carefully. Mr. Ashwani Kumar Chopra, learned Senior counsel for the petitioner assisted by Ms. Sivani Sehgal, Advocate, while placing reliance upon the Full Bench judgment of this Court in the matter of Ram Chander vs. 4 C.R. No. 2524 of 2010 Bhim Singh and others, reported in (2008) 151 PLR 747, has vehemently argued that a co-sharer is an owner of every inch of joint land, hence another co-owner cannot be permitted to raise construction against the interest of the other co-owner. Mr. Ashwani Kumar Chopra, learned Senior counsel further argued that possession on joint property by one co-owner, in the eyes of law, is possession of all co-owners. Mr. Chetan Mittal, learned Senior counsel for the respondents, assisted by Mr. Amit Jain, Advocate, vehemently argued that shares inherited by defendants’ sisters – vendors is in question in previously instituted suit. Mr. Mittal, learned senior counsel for the respondents, while placing reliance on the judgment of the Apex Court in the matter of Ramdas vs. Sitabai and others, reported in 2009(7) SCC 444, argued that plaintiff claiming to be a vendee from the co-sharer cannot be deemed into the joint possession of the property, hence, is not entitled for any injunction and the only remedy available to the plaintiff is to seek partition of the property. The Full Bench of this Court in the matter of Ram Chander (supra) in paragraph no.18 has held as under:- 5 C.R. No. 2524 of 2010 “18. It is, therefore, apparent that a co-owner has an interest in the entire property and also in every parcel of the joint land. When a co-sharer alienates his share or a part thereof in the joint holding what he brings forth for sale is what he owns i.e. a joint undivided interest in the joint property. A sale, therefore, of land from a specific khasra / killa number, forming part of a specific rectangle number, but being a part of a joint khewat, would, in view of the nature of the right conferred upon a co-sharer, be deemed to be the sale of a share from the joint khewat and such a vendee would be deemed to be a co-owner / co- sharer in the entire joint khewat, irrespective of the artificial divisions of the joint land into different rectangles, khasra and kills numbers.” There is no dispute that vendee from the co- owner shall become the co-sharer in the joint property to the extent of the share of the co-owner - vendor and every co-owner has an interest in the whole property and also in every parcel of it. Hon’ble Apex Court in the matter of Ramdas (supra) in paragraph No. 15, 16 and 17 has held as under:- “15. Without there being any physical formal partition of an undivided landed property, a co- 6 C.R. No. 2524 of 2010 sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao Vs. M. Narasimhaswami & Ors. [AIR 1966 SC 470], wherein this Court stated as follows: "Now, it is well settled that the purchaser of a co-parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co- parcener whose share he had purchased." 16. It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors. [AIR 1953 SC 487], wherein this Court held as under:- "All that (vendee) purchased at the execution sale, was the undivided interest of co-parcener in the joint property. He did not acquire title to 7 C.R. No. 2524 of 2010 any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work-out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour (Emphasis added) 17. In view of the aforesaid position there could be no dispute with regard to the fact that an undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court.” From the dictum of the Apex Court in the matter of Ramdas (supra), it can safely be said that a co-share can transfer his undivided share but no possession can be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the court. Vendee from the co-owner shall be entitled for possession through the partition only. Undisputedly, property is still joint and has not been partitioned as yet. As per the dictum of the Apex 8 C.R. No. 2524 of 2010 Court in the matter of Ramdas (supra), plaintiff cannot be said to be in possession of the property in dispute. In the opinion of this Court, suit for injunction simplicitor is not maintainable by the purchaser from the co-owner vendor against another co-owner. The only remedy available to such purchaser from co-owner is to file suit for partition. At the time of hearing on the ad-interim injunction application court is to find out as to whether suit itself is legally maintainable. If suit itself is not maintainable then thre is no question of grant of ad- interim junction. In the present case, suit for simplicitor injunction is not maintainable. Hence, application seeking ad-interim injunction is not maintainable. Petition is dismissed. No cost. September 07, 2010 ( Alok Singh ) vkd Judge 9