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2004 DIGILAW 427 (PNJ)

Balbir Singh v. Lamber Singh

2004-04-07

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This is defendants revision filed under Section 115 of the Civil Procedure Code, 1908 (for brevity, "the Code"), challenging orders of both the Courts below granting an interim injunction in favour of the plaintiff-respondent. Both the courts below have reached the conclusion that in the absence of any evidence showing the exclusive possession it has to be held that a co-sharer cannot raise construction or change the nature of the land without the consent of the other co-sharer. The defendant-petitioner has therefore, been restrained from selling the land more than his share or from raising any construction over any part of the suit land or from changing the nature of the suit land and till the decision of the main suit. 2. Brief facts of the case necessary for deciding the controversy raised in this petition are that the plaintiff-respondent filed a suit for permanent injunction restraining the defendant-petitioner from selling more than his share, from raising any construction over any part of the suit land and further from changing the nature of the suit land. Along-with the plaintiff, an application under Order XXXIX Rules 1 and 2 for interim injunction was also filed which has been allowed on the basis of the version of the parties that the plaintiff-respondent is a co-sharer and owner of the joint holding which has not been partitioned. In support of the aforementioned assertion a copy of the Jamabandi for the year 1995-96 has been produced showing 22 shares of the defendant-petitioner and 14 shares of the plaintiff-respondent. So it further shows the joint possession of the parties. In other part of the land, the parties have been recorded to be co-owners in joint possession. There is nothing on the record to show either exclusive possession of the suit land or indicating that any partition of the joint land has ever been effected by way of family partition. The learned Additional District Judge has placed reliance on two judgments of this Court and affirmed the order of Civil Judge by observing as under:- "6. The learned counsel for the Respondent-Plaintiff relied upon the authorities 2000(3) C.C.C. 379, Ram Niwas v. Jai Ram and Tej Ram, and 2000(1) C.C.C. 394, Akshay Kumar v. Rakesh Kumar. 7. The learned Additional District Judge has placed reliance on two judgments of this Court and affirmed the order of Civil Judge by observing as under:- "6. The learned counsel for the Respondent-Plaintiff relied upon the authorities 2000(3) C.C.C. 379, Ram Niwas v. Jai Ram and Tej Ram, and 2000(1) C.C.C. 394, Akshay Kumar v. Rakesh Kumar. 7. On the other hand the learned counsel for the appellant/defendant relied upon authorities 2000(2) C.C.C. 8 Sandeep Kumar v. Mohan Lal; (2000-3)126 P.L.R. 416, 2000(3) C.C.C. 2, Bachan Singh v. Swaran Singh. I have gone through the said authorities relied upon by learned counsel for the parties. In the case of the authority 2000(2) C.C.C. 8 (supra) relied upon by the learned counsel for the appellant/defendant it has been held that a co-sharer has a right to use the joint property in a manner not inconsistent with the right of other co-sharers. In case the appellant/defendant is allowed to raise a construction on a part of the joint property in which even the appellant is not in possession, it will certainly be inconsistent use of joint property, in the other authority, i.e. 2000(3) C.C.C. 2 (supra) also relied upon by the learned counsel for the appellant/defendant, it has been held that a co-owner, who is not in possession of any part of the property is not entitled to seek 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. Apparently the appellant is neither in possession of any specific part of the suit land nor he has done any act which may amount to the ouster of the respondent/plaintiff. In view of the law laid down by in the case of authority 2000(3) C.C.C. 379 (supra) relied upon by the learned counsel for the respondent/ plaintiff, a co-sharer cannot be allowed to change the nature of the joint property by raising construction, detrimental to the interest of the other co-sharers. Therefore, it could appear that a prima facie case is made in favour of the respondent/plaintiff and the balance of convenience also goes in his favour. In case the ad interim injunction granted by the learned lower court is not affirmed, the respondent/plaintiff will certainly suffer irreparable loss." 3. Mr. Therefore, it could appear that a prima facie case is made in favour of the respondent/plaintiff and the balance of convenience also goes in his favour. In case the ad interim injunction granted by the learned lower court is not affirmed, the respondent/plaintiff will certainly suffer irreparable loss." 3. Mr. R.S. Bal, learned counsel for the defendant-petitioner has argued that the Division Bench judgment of this Court in the case of Bachan Singh v. Swaran Singh, 1 (2000-3)126 P.L.R. 416 has reviewed the earlier law and has held that a co-owner can raise construction in the joint property in respect of the area which is in his share. The learned counsel has maintained that reliance on the judgment in the case of Ram Niwas (supra) without considering the judgment of the Division Bench in Bachan Singhs case by the lower Appellate Court has resulted into complete injustice. According to the learned counsel, the Division Bench judgment in Bachans case has over ruled the judgments in the cases of Nazar Mohammad Khan v. Arshad Ali Khan and others, (1996-1)112 P.L.R. 334, Mst. Parsani alias Mano v. Mohan Singh, 1982 P.L.J. 280; Om Parkash v. Chhaju Ram, (1992-2)102 P.L.R. ..75, Diali Ram v. Dalip Singh, 1989 R.L.R. 52. On the basis of the consideration of various judgments, the Division Bench has laid down certain principles which according to the learned counsel, the learned Additional District Judge has failed to appreciate and has merely relied upon the judgment of this Court in Ram Niwass case (supra). The learned counsel has further argued that on the principle of lis pendens contemplated by Section 52 of the Transfer of Property Act, 1882 (for brevity, "T.P. Act"), the sale of the suit land during the pendency of the suit of the plaintiff-respondent would be at the risk and responsibility of the defendant-petitioner and enough protection has been provided against alienation. He has maintained that issuing interim direction only to the defendant-petitioner would be unfair by keeping the plaintiff-respondent free from any type of limitations. 4. Mr. Kanwaljit Singh, learned counsel for the plaintiff-respondent has submitted that the Division Bench judgment in Bachan Singhs case do not go to the extent of laying down that even in cases where exclusive possession of the party has not been established, the court can permit the raising of construction. 4. Mr. Kanwaljit Singh, learned counsel for the plaintiff-respondent has submitted that the Division Bench judgment in Bachan Singhs case do not go to the extent of laying down that even in cases where exclusive possession of the party has not been established, the court can permit the raising of construction. According to the learned counsel, the prima facie finding recorded by the court below is that the parties are in joint possession and no exclusive possession on the basis of family partition has been established. In such circumstances, the best course suggested by the learned counsel is to keep the property preserved in its present state. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Akshay Kumar v. Kakesh Kumar, 2000(1) Civil Court Cases 394 (Punjab and Haryana) and judgment in the case of Ram Niwas (supra). 5. The question which needs determination in the present case is to whether the impugned orders passed by the court below have violated any of the principles laid down by the Division Bench in Bachan Singhs case (supra). At this stage, it would be appropriate to refer to the principles extracted by the Division Bench after due consideration of various judgments of this Court:- (i) A co-owner who is not in possession of any part of the properties 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 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 the other co-owners, a co-owner out of possession can seek an injunction to prevent such at which is detrimental to his interest. 6. (iv) If the acts of the co-owner in possession are detrimental to the interest of the other co-owners, a co-owner out of possession can seek an injunction to prevent such at which is detrimental to his interest. 6. In all other cases, 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 very inch of it which he is doing as a co-owner. 7. A perusal of (i), (iii) and (iv) principles would show that it would apply to a case where one co-owner who is in exclusive possession. It further shows the remedy in the hands of the co-owner who is out of possession. However, principle (ii) which has been heavily relied upon by the defendant-petitioner postulates that mere raising of construction or improvement in the common property, does not amount to ouster and on that basis, it cannot be concluded that raising of construction by the defendant-petitioner would result into any prejudice to the rights of the plaintiff-respondent. The aforementioned principle would be applicable be cases where the co-sharers are shown to be in exclusive possession. The evidence on the record of this case shows that neither the plaintiff-respondent nor the defendant-petitioner are in exclusive possession of any part of the property. In the absence of such a prima facie finding by the courts below, principle (ii) cannot be properly applied to the facts of the present case. Therefore, on that count 1 do not find any legal infirmity in the orders passed by the courts below. 8. It is, however, appropriate to mention that in the present case a co-owner by filing the suit has got a restraint order against another co-owner. The result is that the plaintiff-respondent is free to alienate the property or raise any construction thereon whereas the defendant-petitioner has been restrained from doing any of the aforementioned things. The judgment of this Court, in the case of Akshay Kumar (supra), which has been relied upon by the learned counsel for the plaintiff-respondent would show that it would be just and equitable to keep the property preserve in its present state. With respect, I am inclined to follow the aforementioned view. The judgment of this Court, in the case of Akshay Kumar (supra), which has been relied upon by the learned counsel for the plaintiff-respondent would show that it would be just and equitable to keep the property preserve in its present state. With respect, I am inclined to follow the aforementioned view. Accordingly, the order passed by the Court below is modified to the extent that the defendant-petitioner as well as the plaintiff-respondent are restrained from alienating the suit property more than their share. They are also restrained from raising any construction over any part thereof. It is further directed that the parties are restrained from changing the nature of the suit land during the pendency of the suit. 9. For the reasons stated above, the revision petition is disposed of in the above terms. Any observation made in the above said order shall not be construed as an expression of opinion on the merit of the case.