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2001 DIGILAW 1295 (PNJ)

Tarsem Singh v. Parkash Kaur

2001-11-21

M.L.SINGHAL

body2001
Judgment 1. Smt. Parkash Kaur filed suit for permanent injunction against Tarsem Singh and Sardul Singh restraining them from making any addition or alteration or reconstruction or changing the nature of the property ABCD as shown in the plan attached to the plaint as detailed in the heading of the plaint situated at Dhangu Road, Pathankot illegally, forcibly and without due course of law, on the allegations that the property in suit was owned and possessed by Ajit Singh son of Wadhwa Singh who had purchased it from the Managing Offcer, Jalandhar vide deed of conveyance dated 3-3-67 registered on 5-5-67. After the death of Ajit Singh, his estate was inherited by his sons Narindar Singh, Gurmit Singh and Harjinder Singh, daughter Smt. Balwinder Kaur and widow Smt. Parkash Kaur. Smt. Parkash Kaur plaintiff thus inherited 1/5th share in the property in suit. Plaintiff and other heirs of Ajit Singh filed Civil Suit No. 88 of 1987 against Dalip Singh, father of the defendants in respect of the property in suit in the Court of Additional Senior Subordinate Judge, Pathankot along with other properties which was decreed on 3-6-1988. Besides the property in suit, Ajit Singh had left properties situated at Village Ugrewal, Batala, Pathankot, etc. Said Dalip Singh in a fraudulent manner in collusion and conspiracy with Arbitrator without any proper authorisation and without delegating the powers to the Arbitrator obtained illegal award on 2-9-95. Said award was challenged in Batala Court. On 30-5-96, at 10 a.m. the defendants wanted to change the nature of the suit property but their attempt was foiled due to the intervention of the respectables of the locality. When the defendants were asked as to why they were trying to change the nature of the property in suit, they replied that they had purchased the suit property from the sons of the plaintiff i.e. Narinder Singh etc. Plaintiff does not concede any sale of the property in suit by Narinder Singh etc. to the defendants. Assuming that Narinder Singh etc. sold the property in suit to the defendants, defendants had no right to change the nature of the suit property which is continuing to be joint. Without getting it partitioned amongst co-sharers, defendants can effect no change in the suit property. to the defendants. Assuming that Narinder Singh etc. sold the property in suit to the defendants, defendants had no right to change the nature of the suit property which is continuing to be joint. Without getting it partitioned amongst co-sharers, defendants can effect no change in the suit property. Along with the plaint, the plaintiff made an application under Order 39, Rules 1 and 2, CPC read with Sec. 151, CPC for the grant of temporary injunction restraining the defendants from making any addition or alteration or reconstruction or changing the nature of the property in suit till the disposal of the suit. 2. Vide order dated 17-8-96, this prayer was allowed by Civil Judge (Junior Division), Pathankot and defendants were restrained from raising any further construction on the property in suit or changing its nature in any manner till the disposal of the suit. 3. Defendants went in appeal. Vide order dated 19-4-2000, Additional District Judge, Gurdaspur dismissed the appeal. Still not satisfied, Tarsem Singh and Sardul Singh defendants have come up in revision to this Court. 4. I have heard the learned Counsel for the parties and have gone through the record. 5. It was submitted by the learned Counsel for the petitioners that no co-sharer can seek injunction restraining another co-sharer from raising any construction on the property which is in his exclusive possession. It was submitted that total area measures 49 marlas and there are thus 6 co-owners. Everyone has raised construction in the area of his/her respective possession. Petitioners have raised construction up to lintel level. In the written statement, the defendants have pleaded that the plaintiff is not in possession of the property in suit. It was denied that property in suit was owned and possessed by Ajit Singh son of Wadhawa Singh or that he purchased it from the Managing Officer vide conveyance deed dated 3-3-67 registered on 5-5-67. Estate of Ajit Singh devolved upon his 3 sons namely Narinder Singh, Gurmit Singh and Harjinder Singh. It was denied that Parkash Kaur is his widow or Balwinder Kaur is his daughter. It was denied that they have 1/5th share each in the property in suit. Estate of Ajit Singh devolved upon his 3 sons namely Narinder Singh, Gurmit Singh and Harjinder Singh. It was denied that Parkash Kaur is his widow or Balwinder Kaur is his daughter. It was denied that they have 1/5th share each in the property in suit. It was denied that the plaintiff and other heirs of Ajit Singh filed Civil Suit No. 88 of 1987 against Dalip Singh in respect of the suit property in the Court of Additional Senior Sub-Judge, Pathankot along with the other properties or that the same was decreed. Plaintiff and Smt. Balwinder Kaur vide the General Power of attorney dated 20-1-86 appointed Narinder Singh, Gurmit Singh and Harjinder Singh as their General Attorney authorising them to sell, mortgage their properties. It was specifically mentioned in that Power of Attorney that any right to act which has not been particularly mentioned shall also be deemed to have been given to the attorney holder. Dalip Singh was appointed as General Power of Attorney vide registered Power of Attorney dated 24-8-88 conferring upon him full power to sell and mortgage the suit property and manage it in any manner or form. Acting on that Power of Attorney, Dalip Singh sold land measuring 12 marlas, 94 square feet out of the land bearing Khasra No. 1268/1278 to the defendants and put them in possession thereof. Since then, the defendants are in actual physical possession of the property in suit. Defendants have been authorised to use the suit land in any manner. Defendants after getting the sanction from Municipal authorities much before the institution of this suit constructed 8 pucca shops over 6 marlas of suit land by spending more than Rs. 2 lacs without any objection being raised by anyone including the plaintiff. Defendants have already laid the shuttering and spread the iron bar for putting lintel roofs. If the defendants are not allowed roofing of the shops, they will be put to irreparable loss. In nutshell, the argument of the learned Counsel for the petitioners was that they are in possession of the property in suit. Defendants have already laid the shuttering and spread the iron bar for putting lintel roofs. If the defendants are not allowed roofing of the shops, they will be put to irreparable loss. In nutshell, the argument of the learned Counsel for the petitioners was that they are in possession of the property in suit. Co-owner in exclusive possession of the property can raise construction and enjoy the property and if he raises any construction thereon and the raising of construction does not amount to ouster, he can enjoy that construction till partition and if that portion falls to the share of other co-owner on which he has raised construction, he will remove that construction without any demur. It was submitted that vide registered sale deed dated 13-9-88, Narinder Singh, Gurmit Singh and Harjinder Singh sons of Ajit Singh son of Wadhawa Singh through their Mukhtar Dalip Singh son of Wadhawa sold land measuring 12 marla, 94 sq. feet out of Khasra No. 1268/1278 to Tarsem Singh and Sardul Singh for Rs. 42,000.00. It was submitted that in sale deed the boundaries of area measuring 12 marla, 94 sq. feet which was sold to the defendants was set out. It was also submitted that in the sale deed, there is recital that possession of the area sold measuring 12 marla, 94 sq. feet was given to the vendees. It was submitted that the area sold through this sale deed by Narinder Singh, Gurmit Singh and Harjinder Singh was within the limits of their share out of land measuring 49 marla. A co-sharer can always sell within the limits of his own share. He can also put in exclusive possession the vendee from him if he himself is in exclusive possession thereof. A vendee from a co-sharer in exclusive possession can always raise construction but that construction shall be subject to partition between co-sharers. He will have to demolish that construction if that portion falls to the share of another co-sharer on partition. In Mukhtiar Singh V/s. Tara Singh, 2000 (3) All Instant Judgments 490, it was held that a co-sharer has full right to enjoy the use and fruit of the property in his exclusive possession to the extent of his share. However, this right is subject to partition and a co-sharer is liable to remove construction if required on partition. In Mukhtiar Singh V/s. Tara Singh, 2000 (3) All Instant Judgments 490, it was held that a co-sharer has full right to enjoy the use and fruit of the property in his exclusive possession to the extent of his share. However, this right is subject to partition and a co-sharer is liable to remove construction if required on partition. Vendee of a co-sharer steps into the shoes of original co-sharer. He can raise construction even before partition. Since every co-sharer has a right in every inch of the joint land before partition, everyone has a right to raise construction on the land in his exclusive possession. In Bachan Singh V/s. Swaran Singh, 2000 (3) Civil Court Cases 2 , Hon ble Division Bench of this Court observed as follows :- (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 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. 6. In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as co-owner. 7. Learned Counsel for the respondents, on the other hand, submitted that the respondent is the widow of Ajit Singh. As widow of Ajit Singh she had 1/5th share in the property left by Ajit Singh. She was thus a co-sharer in the properties of Ajit Singh with other co-sharers namely Narinder Singh, Gurmit Singh and Harjinder Singh and Smt. Balwinder Kaur. As widow of Ajit Singh she had 1/5th share in the property left by Ajit Singh. She was thus a co-sharer in the properties of Ajit Singh with other co-sharers namely Narinder Singh, Gurmit Singh and Harjinder Singh and Smt. Balwinder Kaur. Sale, if any, by Narinder Singh, Gurmit Singh and Harjinder Singh of a specific portion of the joint land will constitute sale of share only. It was submitted that Tarsem Singh and Sardul Singh became co-sharers only with Parkash Kaur etc. and a co-sharer has no right to act to the detriment of the other co-sharers. In Sant Ram Nagina Ram V/s. Daya Ram Nagina Ram, AIR 1961 Punj 528, it was held that 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 anyone to disturb the arrangement without the consent of others except by filing a suit for partition. 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 possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. Possession of the 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. 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. Every co-owner has the right to use the joint property in a husband like manner not inconsistent with similar right of other co-owners. 8. There should be no quarrel so far this proposition of law is concerned that a co-owner must use the joint property in a husband like manner and his use of the joint property is not in any manner inconsistent with the similar right of other co-owners. In this case, however, the case of the petitioners is that the property sold to them by Narinder Singh, Gurmit Singh and Harjinder Singh sons of Ajit Singh was within the limits of their own share and further they had put the vendees from them in exclusive possession thereof. In this case, however, the case of the petitioners is that the property sold to them by Narinder Singh, Gurmit Singh and Harjinder Singh sons of Ajit Singh was within the limits of their own share and further they had put the vendees from them in exclusive possession thereof. If that was so, vendees from them cannot be restrained from enjoying that property by raising construction thereon. So, this revision is allowed. Temporary injunction allowed to Smt. Parkash Kaur by the Courts below is vacated. It is, however, made clear that if the defendants raise any construction they will remove that construction without any demur if the portion purchased by them from Narinder Singh etc.vide sale deed dated 13-9-88 falls to the share of either Balwinder Kaur or Parkash Kaur. Revision allowed.