R.S.A.No. 3339 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3339 of 2007 (O&M) Date of decision: 20.11. 2009 Tara Singh ......Appellant Versus Maghar Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Ajay Pal Singh,Advocate, for the appellant. Mr.S.S.Rangi, Advocate and Mr.Jagnam Singh, Advocate, for the respondent. **** SABINA, J. Plaintiff Maghar Singh filed a suit for permanent injunction, which was dismissed by the Additional Civil Judge, (Sr.Divn.), Dhuri vide judgment and decree dated 3.11.2006. In appeal, the said judgment and decree were set aside by the Additional District Judge, Sangrur vide judgment and decree dated 23.8.2007 and the suit of the plaintiff was decreed. Hence, the R.S.A.No. 3339 of 2007 (O&M) 2 present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:- “2. Briefly stated, plaintiff Maghar Singh had filed a suit against defendant Tara Singh for permanent injunction restraining defendant from interfering in his exclusive possession over land measuring 12 bighas, 18 biswas comprised in khata No.45/97 and khasra Nos. 612/6-8 and 613/6-5 situated in the revenue Estate of village Samudgarh Chhanna. 3. It is averred by the plaintiff that the parties and others are the co-owners in the land measuring 147 bighas 15 biswas and he is owner to the extent of 1/9 share out of the above said land and the property fully detailed in the heading of the plaint is in his exclusive possession for the last about twenty years. It is also averred that the defendant is the real brother of the plaintiff and he is also co-owner in land measuring 147 bighas 15 biswas, but he has no concern with the property in possession of the plaintiff. The defendant without any legal right is threatening to dispossess him from the suit land to interfere in his possession. He was requested many times not to do so, but his refusal R.S.A.No. 3339 of 2007 (O&M) 3 led to the filing of the suit. 4. On notice, the defendant filed written statement taking some legal objections that the suit is not legally maintainable and that the plaintiff has filed the suit on the basis of wrong facts and has concealed the actual and factual facts from the Court. Earlier he had filed a suit along with Jora Singh and others for permanent injunction against the defendant alleging that the parties are in joint possession of the suit property, but that suit has been dismissed on 23.1.2003. The khasra girdwaris are wrongly existing in the name of the plaintiff and actually the defendant is in exclusive possession of khasra No.612 and potato crop has been sown and the house of the defendant is in about two bighas in Khasra No.613 and Roori is also in existence in this khasra number and in about one bigha out of khasra No.613 Barseen is sown. However, the house of the plaintiff is also existing in khasra No.613. A local Commissioner may be appointed to ascertain the true facts and he will make every effort to get the khasra girdawris corrected and further alleged that the plaintiff has filed the suit on the basis of false and frivolous grounds so the plaintiff be burdened with the special costs of Rs.5,000/-. On merits, the averment of the plaint is admitted to the extent that R.S.A.No. 3339 of 2007 (O&M) 4 the parties are co-owners in land measuring 147 bighas 15 biswas but denied that the suit property is in exclusive possession of the plaintiff, rather he has field the suit taking benefit of wrong entries in the revenue record and he is not in possession of any part of khasra No.612 and only the house of the plaintiff is in existence in about two bighas out of khasra No.613, rather khasra No.612 is in exclusive possession of the defendant. The other averments of the plaintiff have also been contested and prayed for dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is in exclusive possession of the property in dispute as co- owner? OPP 2. Whether the plaintiff is entitled to decree of permanent injunction as prayed? OPP 3. Whether the present suit is not maintainable? OPD 4. Whether the plaintiff has concealed the material facts from this Court? OPD 5. Whether the plaintiff has filed the present suit on the basis of false and frivolous grounds if so its effect? OPD R.S.A.No. 3339 of 2007 (O&M) 5 6. Relief. The substantial question of law that arises in this case is “whether a co-sharer in joint possession of suit property is entitled for a decree of permanent injunction restraining the other co-sharer from dispossessing him from the suit land? Learned counsel for the appellant has submitted that the parties being brothers were co-sharers in the suit land. The parties were in joint possession of the suit land and hence, the plaintiff could not be granted a decree of permanent injunction against the defendant/co-sharer. Learned counsel for the respondent, on the other hand, has submitted that the plaintiff was in exclusive possession of the suit land and hence, he was entitled to protect his possession. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be allowed. 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 R.S.A.No. 3339 of 2007 (O&M) 6 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 for actual joint possession, but R.S.A.No. 3339 of 2007 (O&M) 7 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.” In the present case, as per the revenue record, the plaintiff is described to be in exclusive possession of the suit land. Presumption of truth is attached to the entries in the jamabandi. However, the said presumption is rebuttable. Ex.D-1 is the certified copy of the plaint in civil suit No.57/1.4.97-T 386 of 11.6.2001, filed by plaintiff Maghar Singh along with Jora Singh, Karnail Singh and Bant Singh against defendant Tara Singh seeking permanent injunction restraining the defendant from alienating, mortgaging, transferring any specific portion of the suit property (including the suit property in dispute in the present case). A perusal of Ex.D-1 reveals that it had been pleaded by the plaintiffs in the said suit that the parties were co-owners in joint possession of the suit property. Partition proceedings between the parties were pending. No part of the property was in exclusive possession of defendant Tara Singh. R.S.A.No. 3339 of 2007 (O&M) 8 No formal partition had taken place between the parties regarding the suit property. In these circumstances, in view of the pleadings by plaintiff Maghar Singh in an earlier suit, the presumption of truth attached to the entry in the jamabandi stood duly rebutted. A copy of the plaint Ex.D-1 was proved by the defendant by summoning the original record and examining the counsel Sh.Raj Kumar Singla as DW-2, who had filed the said suit. The plaintiff, in his cross- examination, admitted that the house of Tara Singh -defendant was in existence in the property in dispute. In these circumstances, it stood established that the parties were in joint possession of the suit land and the entry in the jamabandi to the effect that the plaintiff was in exclusive possession of the suit property was not correct. It is a settled proposition of law that a co-sharer cannot seek injunction against another co-sharer. Learned Additional District Judge had, thus, erred in decreeing the suit of the plaintiff. Hence, the substantial question of law that arises in this appeal stands answered accordingly. Consequently, this appeal is allowed. The impugned judgment and decree passed by the lower Appellate Court are set aside and the judgment and decree passed by the trial Court are upheld and the suit of the plaintiff stands dismissed. (SABINA) JUDGE November 20, 2009 anita