RFA No.3527 of 1992 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RFA No.3527 of 1992 Date of Decision.31.10.2012 Kartar Singh (since deceased) through LRs and others .....Appellants Versus Bakhshi Singh (since deceased) through LRs and others .....Respondents 2. RSA No.3275 of 2001 Ishar Singh s/o Sunder Singh and another .....Appellants Versus Gurdial Singh son of Bakshi son of Sunder s/o Mangal and others .....Respondents Present: Mr. Amit Jain, Advocate with Mr. Ashok Giri, Advocate for the appellants. Mr. Balbir Singh, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J.(ORAL) 1. Both the first appeal and the second appeal are connected. RFA No.3527 of 1992 is with reference to a claim for apportionment of the property acquired by the Government where the dispute was amongst the brothers and the contest was with reference 1/5th share claimed by defendant's son. The appeal was in relation to a portion of property that had been released from acquisition after the land owners came by means of writ petition challenging the acquisition proceeding and when the Improvement Trust had a portion of the property over RFA No.3527 of 1992 -2- which a house had been constructed. Although the suit was with reference to 6 kanals 8 marlas of land in Khasra No.50//5 min and 10 marlas of land in Khasra No.50//2, the plaintiffs were restricting the claim only to 1 kanal 2 marlas in Khasra No.50//55 and 10 marlas of land in Khasra No.5/2. The suit was filed by four brothers against yet another Bakshi and his predecessor in respect of 1/5th share contending that the brother had himself filed a suit for partition in respect of his 1/5th share and the suit was pending and he had effected the sale of the property to a 2nd defendant without any right or title accruing to the plaintiff. The possession was to be seen in the context of their admission regarding the construction which they had made on the property and even in the reply filed Bakshi Singh he had not asserted joint right in respect of the super-structure and such a case came to be canvassed only on the admission by the Improvement Trust itself that the plaintiffs alone had constructed the property and they were in possession of the Improvement Trust. 2. As regards the 1/5th share, which Bakshi Singh was claiming, it turned out that his share in the property was affirmed by a Civil Court decree and it had become final. The plaintiffs who were parties to the same and in an adjudication relating to apportionment under Section 30 of the Land Acquisition Act, the Reference Court could not have traversed beyond a final adjudication already rendered with reference to the very same property. Secondly, if Court below had granted a relief of 1/5th share in favour of Bakshi Singh in recognition of the right granted to him through a decree, I cannot find any error in the approach of the Reference Court. Consequently, the award making the RFA No.3527 of 1992 -3- apportionment entitling the 1st respondent-Bakshi Singh to claim 1/5th share would require to be affirmed and the first appeal filed challenging the same ought to fail and the appeal in RFA No.3527 of 1992 is consequently dismissed. 3. The plaintiff's suit for injunction was, however, based on the assertion that they were in exclusive possession of the property and the sale effected by the brother of Bakshi Singh in favour of the 2nd respondent-defendant cannot be taken as the justification for a 3rd party predecessor to enter upon the property. In the second appeal in RSA No.3275 of 2001, the appeal has been admitted without framing any substantial question of law as necessary in terms of Section 100 of the Civil Procedure Code. The following substantial question of law shall arise:- “Whether the plaintiffs in possession of property could maintain an action for injunction against the defendants by the only fact that they are admittedly in possession of property and their possession could not have been disturbed except by due process of law.” The second appeal is, therefore, taken up on consideration of the above substantial question of law. 4. The suit is filed for injunction in respect of the whole of the property and as I have already observed while dealing with the case in RFA No.3527 of 1992, the suit was ultimately restricted only to the portion of the property that was released from the acquisition and the house, which had been constructed. Learned counsel appearing on behalf of the appellants would lay emphasis on the proceedings filed by all the plaintiffs before this Court challenging the acquisition where they had asserted their possession regarding the property and Bakshi Singh RFA No.3527 of 1992 -4- had himself not joined to save the property from acquisition. Learned counsel would also rely on the admission made by the Improvement Trust on the basis of which the portion of the property where construction had been made, had been ordered to be released. According to him, the plaintiffs' possession was an admitted fact and the Court could not have refused the relief of injunction. 5. A co-owner in possession of property under an agreement between the parties by a common arrangement is entitled to maintain an action for injunction and can seek the other co-owner not in possession of property to work out his own suit for partition. This would obtain in a case where the parties agreed themselves to be co-owners and the persons suing for injunction pleads a case of arrangement where the exclusive possession of the property is asserted. A different legal formulation would obtain in a case where a co-owner denies the right of yet another co-owner to a share and challenge even his right to transfer the property to yet another person. In this case the suit has been filed on the basis that 1st defendant Bakshi Singh was not entitled to any share in the property and his sale was invalid. There is a specific issue framed by the Court whether the sale by the 1st defendant in respect of 1/5th share in favour of the 2nd defendant was valid or not as contended by the plaintiffs. The Court found that Bakshi Singh was a sharer to the property and plaintiffs as co-owners cannot maintain an action for injunction against yet another co-owner. It is a fact that there was a suit for partition filed at the instance of defendant at the time when the plaintiffs themselves filed a suit. If the plaintiffs had contended that the plaintiffs were prepared to concede the 1/5th share to the defendant RFA No.3527 of 1992 -5- in the final decree for partition when the specific shares where carved out and that they were entitled to an independent action for injunction till such division be made, the relief for injunction would be possible. However, I find that the plaintiff denies title to yet another co-owner but the entitlement to a share has already been upheld. In such an event, plaintiffs' action for injunction itself ought to fail. 6. The specific question of law that arises is whether the plaintiff, who seeks for injunction against yet another co-owner could maintain the action in denial of the co-sharer's right. In my view it cannot. Consistent with my finding in the RFA No.3527 of 1992 that Bakshi Singh was entitled to 1/5th share, the defendant or the predecessor could not be staved off from the property unless the plaintiffs had conceded to the title. In this case the action for injunction against them was not tenable in law. It may be that the plaintiffs are in possession of property but their possession will not be protected in this case since they have not conceded the title to the defendants in relation to the property. The relief of injunction is a discretionary relief and the plaintiff's conduct of wrongful denial of defendant's title will not have the assistance of the Court to secure the relief. The question of law is answered against the plaintiffs in the second appeal. The appeal in RSA No.3275 of 2001 is also dismissed but with observations made above. (K. KANNAN) JUDGE October 31, 2012 Pankaj*