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2001 DIGILAW 706 (PNJ)

Lekh Ram v. Hari Chand

2001-07-18

M.L.SINGHAL

body2001
JUDGMENT M.L. Singhal, J. - This is a civil revision against the order dated 10.4.1999 of Additional District Judge, Jagadhari, whereby he dismissed the defendants appeal against the order of Civil Judge (Junior Division), Jagadhari, dated 5.2.1999, whereby he had directed both the parties to maintain status-quo regarding the existing position and possession of the suit property. 2. This revision has arisen in the following circumstances :- "Hari Chand son of Lekh Ram, plaintiff filed a suit for declaration against Lekh Ram and his sons Nasib Singh and Tejpal to the effect that he is joint owner in equal possession with the defendants with respect to the properties detailed below :- i) 400 poplar and other trees including 11 Shisham and various fruit bearing trees alongwith three tube-wells, embedded and standing in the joint land of the parties comprised in Khewat Nos. 11, 16 to 18 and 50 Khatoni Nos. 14 to 16, 28 to 33 and 104, situated in village Isher Pur (H.B. No. 137); ii) Mortgagee rights with respect to land mortgaged by Shri Satish Kumar & others vide Registered Mortgage Deed No. 4193 dated 4.12.1995; iii) House property purchased from Shri Rameshwar Dass son of Kesho Ram; iv) Live stock consisting of five buffaloes and agricultural implements namely tractor trolley etc., and for separate possession thereof by partition and consequently for permanent injunction restraining them from interfering in the joint possessory rights of cultivation and removing and cutting any wood of the trees and/or disposing of any joint property without the consent of the plaintiff and changing the existing nature till the joint properties are separated by metes and bounds by partition." 3. It was alleged in the plaint that till 1996, the entire family was joint. House property was purchased in the year 1976 with the income of the ancestral property. Mortgagee rights with respect to the land were also purchased by Lekh Ram defendant. Both properties after purchase were thrown in the joint pool of the parties. Since then, they have been treated as joint undivided properties. Defendants are threatening to alienate and dispose of immovable property. Lekh Ram in his capacity as Karta, divided ancestral land through Civil Suit No. 512 dated 25.10.1996, titled Nasib Singh and others versus lekh Ram, which was decided on 29.3.1997. Each of Nasib Singh, Hari Chand and Tejpal got 1/4th share. Defendants are threatening to alienate and dispose of immovable property. Lekh Ram in his capacity as Karta, divided ancestral land through Civil Suit No. 512 dated 25.10.1996, titled Nasib Singh and others versus lekh Ram, which was decided on 29.3.1997. Each of Nasib Singh, Hari Chand and Tejpal got 1/4th share. Lekh Ram was also left with 1/4th share. So far as other properties are concerned, they were kept joint, meant to be used by all. House property was purchased in the 1976 with the income of ancestral property. Mortgagee rights with respect to the land were also purchased by Lekh Ram. Alongwith, the plaint, the plaintiff made an application for the grant of temporary injunction restraining the defendants from interfering in the joint possessory rights of the cultivation, irrigation, cutting and removing any wood of the trees and/or disposing of any joint property without the consent of the plaintiff and changing the existing nature till the joint holdings were separated by metes and bounds by partition. This application was resisted by defendants urging that the parties had separated themselves and partitioned their ancestral properties. Properties in suit are not joint properties, it is self acquired property of Lekh Ram. In case injunction is granted, defendants will suffer irreparable loss and injury. In case, no injunction as granted, the plaintiff would not suffer any loss or injury as the parties are in separate possession so far as ancestral property is concerned, while self acquired property is in the exclusive possession of Lekh Ram defendant. Vide Order dated 5.2.1999, Civil Judge (Junior Division), Jagadhari, directed both the parties to maintain status-quo regarding existing position and possession over the suit property till the final disposal of the suit. 4. Defendants went in appeal which was dismissed by Additional District Judge, Jagadhari, vide Order dated 10.4.1999. Still not satisfied, the defendants have come up in revision to this Court. 5. It was submitted by the learned counsel for the petitioners that Hari Chand was separated from the joint family about 25 years ago (it may be mentioned here that Lekh Ram is the father while Nasib Singh, Tejpal and Hari Chand are his sons). It was submitted that Lekh Ram has six daughters. Expenses of their marriages were borne by him (Lekh Ram) and his sons (Nasib Singh and Tejpal) and Hari Chand made no contribution towards the expenses of their marriages. It was submitted that Lekh Ram has six daughters. Expenses of their marriages were borne by him (Lekh Ram) and his sons (Nasib Singh and Tejpal) and Hari Chand made no contribution towards the expenses of their marriages. It was submitted that Hari Chand purchased the properties in his own name, as from the very beginning, he had separated from the joint family after he had been given due share of the land which was in the name of Lekh Ram. Nasib Singh and Tejpal took the responsibility of carrying out the affairs of the family together with their father Lekh Ram. It was submitted that in this suit, Hari Chand has included the other property which is in the name of Nasib Singh and also the Poplar trees. It was submitted that the respondent/plaintiff has included the other property of Lekh Ram with which he has nothing to do, since he was separated 25 years ago. He has nothing to do with machineries, etc., purchased by Lekh Ram, Nasib Singh and Tejpal with their own earnings. It was also submitted that the Court should not have passed an order directing the parties to maintain status-quo as this suit is not maintainable being hit by Order 2 Rule 2 CPC. Relief being claimed now could be claimed in the earlier suit namely Civil Suit No. 512 of 1996. Hari Chand was in possession of his respective share alongwith Lekh Ram, Nasib Singh and Tejpal. Nasib Singh, Hari Chand and Tejpal filed Civil Suit No. 512 of 1996 in which Lekh Ram appeared and the decree was passed by the Court on the basis of the consent given by Lekh Ram. In that suit, it was specifically mentioned by Nasib Singh, Hari Chand and Tejpal that they were not in possession of their respective shares and they wanted only the factum of their separate possessions incorporated in the revenue record. It was submitted that a mere look at the plaint of that suit Annexure P-1 would show that they were already in separate possession of their respective shoes in view of family settlement that took place about a year prior to 25.10.1996 and since then, they have been owners in possession of the land that fell to their exclusive share and it was with a view to secure the implementation of that family settlement that, suit was filed. It was submitted that in that suit, joint land had virtually been partitioned as per their share. In the present suit, Hari Chand has included the other property which is in the name of Nasib Singh and also the Poplar trees planted by him. He has also included the other personal property of Lekh Ram with which Hari Chand has nothing to do. 6. it was submitted by the learned counsel for the petitioner that assuming Civil Suit No. 512 of 1996 did not bring about partition of the joint Khata between them they are nonetheless in separate exclusive possession of the land that fell to their share and if that is no, none of them can be stopped from enjoying the property of which he is in exclusive possession. In Bachan Singh v. Swaran Singh, Civil Revision No. 4549 of 1997, decided on 6.3.2000, the Honble Division Bench of this Court held that a co-sharer who is in possession exclusively of some portion of the joint holding, he is in possession thereof as a co-sharer and is entitled to continue to be in possession till the joint holding is partitioned. When a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession what he transfers is his right as co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all the co-sharers. A co-sharer who is in exclusive possession of any portion of joint khata can transfer that portion subject to adjustment of the rights of the other co-sharers therein at the time of partition. Each so-sharer has a right in each part of land till it is partitioned. A co-sharer in exclusive possession has a right to maintain it and enjoy the property till the same is partitioned by metes and bounds. A co-owner who is not in possession of any part of the property is not entitled to seek an injunction against the another co-owner who has been in exclusive possession of any 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. 7. A co-owner who is not in possession of any part of the property is not entitled to seek an injunction against the another co-owner who has been in exclusive possession of any 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. 7. On the strength of this judgment of the Division Bench of this Court, the learned counsel for the petitioners submitted that when they are in exclusive possession, no injunction could be granted against them in favour of Hari Chand, restraining them from enjoying the property in their exclusive possession. It was submitted that the tractor is lying registered in the name of the plaintiff. Similarly, motor cycles are lying registered in the name of the plaintiff. There are plots which the plaintiff had purchased in his name. It was submitted that this also shows his separation from the joint family. It was submitted that for giving his own share to Nasib Singh and Tejpal, Lekh Ram filed suit as they helped him in the discharge of his duties towards his daughters. In that suit plaintiff had moved an application under Order 1 Rule 10 CPC for being impleaded as a party. After appearing in that suit, he filed this suit. It was submitted that if the order directing the parties to maintain status-quo is allowed to remain that will work to the injury to the petitioners as Poplar trees are standing in the land. Poplar trees are mature for being cut and if they are not cut, they would become useless. 8. It is to be decided after evidence whether the land in suit has ceased to be joint and the parties have separated and are in separate possessions and thee is no jointness between them. If no partition has taken place and they are still joint and some portion of the joint land has been put in the exclusive possession of each of the co-sharers, allowing one co-sharer to cut the trees and enjoy them in absolute severallty, wont be husband like user by that co-sharer of the joint property. Each co-sharer is required to use the joint property in a husband like manner. He is not supposed to use the joint property in a manner that the rights of the other co-sharers are injured or jeopardised. Each co-sharer is required to use the joint property in a husband like manner. He is not supposed to use the joint property in a manner that the rights of the other co-sharers are injured or jeopardised. 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 was one of the propositions which was enunciated in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punjab 528, by this Court. I, therefore, dont think it proper to interfere with the discretion exercised by the two courts below when the exercise of discretion by them cannot be said to be perverse. Grant of injunction is a discretionary matter. Interference with the exercise of this discretion is not called for till it is found that while exercising this discretion, principles governing the grant of temporary injunction have not been kept in view. 9. For the reasons given above, this revision fails and is dismissed, so that, there is no damage to the poplar, Shisham and other fruit bearing trees standing in the land, the learned trial court is directed to dispose of the suit as early as possible. Revision dismissed.