RSA No. 1840 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1840 of 2011 (O&M) Date of Decision: 28.4.2011. Surjit Singh .......Appellant Vs. Nachhattar Singh & another ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. N.K.Manchanda, Advocate for the appellant. ..... SABINA, J. Plaintiffs had filed a suit for permanent injunction. The case of the plaintiffs in brief was that they were co-sharers in the suit land. However, the plaintiffs were in exclusive possession of the suit land since long. Defendant had never remained in possession of the suit land. Now the defendant was threatening to dispossess the plaintiff from the suit land. Defendant, in his written statement, admitted that the parties were co-sharers in the suit land. It was averred that the suit land had not been partitioned, so far. Defendant was in possession of the suit land. Defendant had moved an application before the Tehsildar Faridkot on 30.3.2005 for correction of the entries in the khasra girdawari. The Tehsildar visited the spot on RSA No. 1840 of 2011 (O&M) -2- 16.9.2005 and thereafter, the plaintiff had filed the present suit. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the the plaintiff is entitled for permanent injunction as prayed for? OPP 2. Whether the plaintiff has concealed the material points/facts from the Court, as alleged? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form?OPD 4. Relief.” Civil Judge (Senior Division) vide judgment and decree dated 14.10.2009, decreed the suit of the plaintiffs and restrained the defendant from interfering in the peaceful possession of the plaintiffs over the land bearing Khasra No. 1044/888/551(2-0). Aggrieved by the said judgment and decree, defendant preferred an appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 22.2.2011. Hence, the present appeal by the defendant. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. 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 RSA No. 1840 of 2011 (O&M) -3- 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. RSA No. 1840 of 2011 (O&M) -4- (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 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.” As per the jamabandies placed on record, plaintiffs are described to be in exclusive possession of the suit land. Defendant was not described to be in possession of the suit property. As per the order dated 20.12.2006, the entry in the khasra girdawari was changed in favour of the appellant qua possession over the suit property but the operation of the said order was stayed by the Financial Commissioner. Hence, the order dated 20.12.2006 could not advance the case of the appellant to the effect that he was in possession of the suit property. Although, the parties are co-sharers qua the suit property but since the plaintiffs are in exclusive possession of the same, they are entitled to protect their possession till the property is partitioned by meets and bounds. The suit of the RSA No. 1840 of 2011 (O&M) -5- plaintiff was, thus, rightly decreed by the courts below. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE April 28, 2011 Gurpreet