IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2338 of 2006 (O&M) Date of decision : 27.11.2009 Gaj Raj and others … Appellants Versus Hardawari and others …Respondents CORAM : HON’BLE MRS.JUSTICE SABINA Present: Mr.Kulvir Narwal, Advocate for the appellants Mr.Rakesh Nehra, Advocate for the respondents. Sabina, J (Oral) Plaintiffs filed a suit for permanent injunction against the defendants restraining them from raising any sort of construction on the land in dispute. The suit of the plaintiff was dismissed by Additional Civil Judge (Sr.Divn.) Bahadurgarh vide judgment and decree dated 28.2.2001. In appeal, the Addl. District Judge, Jhajjar accepted the appeal and set aside the impugned judgment and decree passed by the trial court vide judgment and decree dated 31.10.2005. Hence, the present appeal. The brief facts of the case as noticed by the lower appellant Court in para Nos.2 and 3 of its judgment read as under:- “2. The facts, in brief, giving rise to the present appeal are as follows:- “That appellants-plaintiffs Balmat etc. filed a suit for obtaining a decree of permanent injunction against the defendant-respondents restraining them from raising any sort of construction on the disputed plot which has been fully mentioned in para No.1 of the plaint, without getting the same partitioned. It was averred that the plaintiffs and the defendants are joint owners in possession of a residential plot situated within the abadi of village Badli, Tehsil Bahadurgarh, which has been shown by letters ABCD in red colour in the site plan attached with the plaint and the boundaries of which are as under: East: Gher of Mahabir son of Juglal RSA No.2338 of 2006 (O&M) West : Rasta Share Aam North : Gitwar of Siri Ram and Gaj Raj etc. South : Gher of Sukhbir etc. sons of Ram Singh It was further submitted that the disputed plot khasra No.4873 according to the settlement of 1879 of village Badli and the same was in the ownership and possession of one Salig Ram the common ancestor of the parties to the suit and after the death of Salig Ram, the parties to the suit inherited the disputed plot through succession; that the disputed plot is jointly owned and possessed by the parties to the suit and no partition has been effected of the disputed plot and the disputed plot is being used for tethering their cattle heads, storing fire woods and for other agricultural purposes. The pedigree table of the parties to the suit is as under :- Mansa Ram Khem Karan Salig Balku Het Ram Jeet Ram Died Issuless Ram Sahaya Hans Ram Siri Chand Sanwlaia Siri Ram Bhala Ram Jugati Tittu Gopi Died issuless Balmat (Plaitniff No.1 Hardwari Pltf.No.2 Mungli Pltf.No.3 Died issueless Avej Gopi Gajraj (Deft.No.1) Avej Bhamra Karan Singh Deft.No.2 Kuldeep Deft.No.3 Samjo widow, Deft.No.4. It is further submitted that the defendants who are the joint owners in possession alongwith the plaintiffs of the disputed plot want to raise construction over it without getting the same partitioned forcibly and of which they have no right at all and they have collected the 2 RSA No.2338 of 2006 (O&M) building material around the disputed plot and have started to dig foundation; that the plaintiff requested the defendants not to raise any sort of construction, but of no avail. Hence, this suit. 3 Notice of the suit was given to the defendants and they filed joint written statement submitting that the suit property is owned and possessed by defendant No.1 and he alongwith other defendants is in possession of the same, that the plaintiffs have no concern, right and title in the sit property and the plaintiffs are not join owners in possession of the suit property; that the suit property is not part of khasra No.4873 according to the settlement of 1879 nor the same was owned and possessed by Salig Ram and that was not common ancestors of the parties. It was further submitted that the pedigree table drawn by the plaintiffs in para 3 of the plaint is wrong and mis-leading and defendant No.1 inherited and succeeded to the same from his father and the defendants are in possession of the suit property. All other allegations of the plaint were also denied and so dismissal of the suit was prayed for. From the pleadings of the parties, the following issues were framed by the learned trial Court:- “1. Whether the plaintiffs are joint owners in possession of the suit property, if so its effect? OPP. 2. Whether the suit is not maintainable in the present form?OPD 3. Whether the plaintiffs have no locus-standi to file the present suit? OPD. 4. Relief. “ After hearing learned counsel for the parties, I am of the opinion that the instant appeal is devoid of any merit and deserves dismissal. The plaintiff had filed a suit for permanent injunction restraining the defendants from raising construction over the property in dispute without getting the same partitioned. Admittedly, the property in dispute was initially 3 RSA No.2338 of 2006 (O&M) owned by Salig Ram and after his death, parties to the suit inherited the disputed plot through succession. Learned counsel for the appellants has failed to substantiate his plea that the suit land has been partitioned. Merely because three houses have already been partitioned between the parties does not lead to the presumption that the land in dispute has already been partitioned. 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. (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 4 RSA No.2338 of 2006 (O&M) 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 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.” Thus, it is a settled proposition of law that a co-sharer can not seek injunction against the other co-sharer with regard to the property which is joint in their possession. Since the parties are in joint possession of the suit land, any of the co-sharer cannot raise construction to the detriment of the other co-sharer till the land is partitioned. In these circumstances, the learned Additional District Judge, has rightly decreed the suit of the plaintiff. No substantial question of law arises for consideration in this appeal. Dismissed. [ SABINA ] JUDGE 27.11.2009 sd 5