RSA No. 3123 of 1984 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3123 of 1984 (O&M) Date of decision:- 23.12.2011 Sucha Singh & others ...Appellants Versus Dalip Singh ...Respondent CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Gurinder S. Sandhu, Advocate for the appellants. Mr. Amarjit Markan, Advocate for the respondent 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? RITU BAHRI J. This regular second appeal is against the judgment and decree dated 17.09.1984 passed by the Additional District Judge, Sangrur whereby the appeal against the judgment and decree dated 20.09.1982 passed by the Sub Judge Ist Class, Sangrur was modified and the suit of the plaintiff with regard to land measuring 4 kanal has been dismissed. The plaintiff's case is that he is a co-sharer in the joint khata measuring 156 kanals 6 marlas situated in the area of the village RSA No. 3123 of 1984 -2- Sheron as detailed in the plaint as per jamabandi for the year 1975-76. The plaintiff is in exclusive possession of land measuring 71 kanals 16 marlas, comprising killa No. 6/2, 14, 17, 23 min (4), 24, 25 of rectangle No. 230 killa Nos. 19 min (4), 21, 22, 23 of rectangle No. 308 and killa Nos. 1, 9, 10/1 (4) of rectangle No. 322 out of the said joint khata. The defendants wanted to dispossess him forcibly from the said land. He filed the instant suit for permanent injunction restraining them from interfering in his possession over the land otherwise than in due course of law. The defendants contested the suit. They filed their written statement in which they admitted the plaintiff to be a co-sharer in the land. The plaintiff had 3/8th share in the entire joint holding and all the co-sharers are in possession of the suit land. It was denied that the plaintiff was in exclusive possession of the land, which comes to 76 kanals 16 marlas and not 71 kanals 16 marlas and the specific area of each khasra number had also not been given in the plaint. They further raised the objections that the Gram Panchayat got a compromise effected between the parties resulting in family partition and possessions were taken in pursuance of that partition. The defendants even effected improvements in the land bearing killa Nos. 16, 23, 24 and 25 of rectangle No. 230 after the aforesaid partition. The plaintiff was no in exclusive possession of any joint land and the suit is liable to RSA No. 3123 of 1984 -3- be dismissed. On 03.08.1981, the trial Court framed the following issues:- “ (1) Whether the plaintiff is co-owner in possession of the suit land? OPP (2) Whether the plaintiff is entitled to the injunction prayed for? OPP (3) Whether the plaintiff has no locus-standi to file the suit? OPD (4) Whether the suit is not maintainable in the present form? OPD (5) Relief.” The trial Court decided issue Nos. 1 and 2 in favour of the plaintiff and against the defendants. On issue Nos. 3 and 4, the trial Court returned a finding that the defendants have miserably failed to prove that any partition had taken place between the co-sharers. The plaintiff was able to prove that he is in possession of the land comprised in rectangle No. 230/6/2, 14, 17, 23 min (4-0), 24, 25, rectangle No. 308/19 min (4-0), 21, 22 and rectangle No. 322, 1, 9, 10/1 (4\0). The total area of this land comes to 77 knals 10 marlas even though killa No. 23 of rectangle No. 308 has been excluded from consideration. The plaintiff has given the total area of this land to be 71 kanals 16 marla. As per revenue record, the plaintiff was held to be in possession of 77 kanals 16 marlas. The trial Court, vide judgment dated 20.09.1982 decreed the suit of the plaintiff. Feeling aggrieved against the above said judgment and decree dated 20.09.1982, the defendants filed appeal before the RSA No. 3123 of 1984 -4- Additional District Judge, Sangrur. The lower Appellate Court has affirmed the findings of the trial Court. However modified the decree of the trial Court and held as under:- “In the result, the decree granted by the learned trial court is modified and no relief is granted to the plaintiff- respondent of the land measuring 4 kanals comprising killa No. 19 min of rectangle No. 308. The suit of the plaintiff in respect of that land measuring 4 kanals will be deemed to have been dismissed but for this modification the appeal hereby stands dismissed with no order as to costs in this appeal.” Heard learned counsel for the parties. The only point for consideration before this Court is that whether an injunction can be granted in favour of co-owner of the property against the other co-owner who is threatening to dispossess him from the suit land. It is not disputed that in the suit filed by the plaintiff, he is found to be in possession of 77 kanals 16 marlas of joint land. The defendants failed to prove that any partition had takn place. Thus, the plaintiff has been found to be in possession of 77 kanals 16 marlas to the knowledge of the defendants and apprehension to ouster the plaintiff, the injunction can be granted restraining the other co-sharers from interfering in the peaceful possession of the plaintiff. The plaintiff has been in successfully able to prove that he is in exclusive possession of the land. As per the revenue records pertaining to the year 1975-76, he is in exclusive possession of this land. The circumstances in which a RSA No. 3123 of 1984 -5- co-owner is in possession can seek injunction against the other co- owner have been culled out by Division Bench of this Court rendered in a case of 'Bachan Singh vs. Swaran Singh, 2000(3) R.C.R (Civil) 70'. In para 15, it has been held as under:- “(i) a co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of the co-owner out of possession. (ii) Mere making of construction or improvement of, in, the common property does not amount to ouster. (iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property. (iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest.” There is no dispute on the preposition of law that all the co-sharers who have interest in the property are in possession jointly unless the land is partitioned. Mere occupation of the larger portion or even of an entire joint property does not necessarily amount to ouster the possession of one is deemed to be on behalf of all co-sharers. In the case of Satish Chander Sethi vs. M/s Chuni Lal RSA No. 3123 of 1984 -6- Sunder Lal, 1996(1) R.R.R 143, it was held as follows:- “Thus, whereas the authorities are consistent that each co- sharer has a right in each parcel of land till it is partitioned have all the same held that a co-sharer in exclusive possession has a right to maintain it and enjoy the property till the same is partitioned be metes and bounds.” Applying the ratio of the law laid down in the judgments, the plaintiff was in exclusive possession of the joint property and the suit of the plaintiff has been rightly decreed restraining the other co- sharer from interfering in their possession except by due course of law i.e by seeking a partition thereon another question of law arises for consideration. Resultantly, R.S.A is dismissed. 23.12.2011 ( RITU BAHRI ) G.Arora JUDGE