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2014 DIGILAW 1121 (PNJ)

KALA SINGH v. MUKESH KUMAR

2014-07-30

KARAM CHAND PURI

body2014
JUDGMENT : KARAM CHAND PURI, J. 1. Challenge in this appeal is to the judgment and decree dated 11.9.2013 passed by Ms. Ranjana Aggarwal, Additional District Judge, Kurukshetra vide which the appeal preferred by the plaintiff against the judgment and decree dated 7.5.2013 passed by Ms. Anjali Jain, Civil Judge (Junior Division), Pehowa was accepted and the defendants were restrained from taking possession of the suit land by force or illegal method except in due process of law till partition. Briefly stated, plaintiff filed suit for permanent injunction restraining the defendants from taking possession of the suit property alleging that he was in possession of the suit land being co-sharer. The defendants were out to dispossess him forcibly. 2. The defendants filed written statement taking preliminary objection of maintainability, locus standi, cause of action, mis-joinder and non-joinder of necessary parties and concealment of material facts. It is submitted that partition suit is pending. 3. From the pleadings of the parties, following issues were framed:- "(1) Whether the plaintiff is entitled to relief of Permanent injunction as prayed for? OPP (2) Whether the suit of the plaintiff is not maintainable? OPD (3) Whether the suit is bad for mis-joinder and non joinder of necessary parties? OPD (4) Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD (5) Whether the plaintiff has concealed true and material facts from the Court? OPD (6) Relief." 4. Learned trial Court after appraisal of the evidence returned findings on issue No. 1 against the plaintiff. However, impliedly it was held by the trial Court that plaintiff is in possession but his possession is not with the express or implied arrangement with co-owner and as such the plaintiff is not entitled to injunction. Issues No. 2 to 5 were decided against the defendants. However, in view of findings on issue No. 1, suit of the plaintiff was dismissed. 5. The plaintiff preferred first appeal and the appellate Court vide judgment and decree dated 11.9.2013 set aside findings on issue No. 1 and held that the co-sharer in exclusive possession can keep the property till the partition. He can only be dispossessed by due process of law. The said judgment and decree dated 11.9.2013 has been challenged in the present appeal. 6. He can only be dispossessed by due process of law. The said judgment and decree dated 11.9.2013 has been challenged in the present appeal. 6. The appellants in paragraph No. 10 of the grounds of appeal mentioned that following substantial questions of law have arisen:- (a) Whether the Hon'ble First Appellate Court have ignored the law laid down by Hon'ble Supreme Court of India in as much as a co-sharer can only protect his exclusive possession in the land in dispute if it is being held by him in an arrangement oral or express. (b) Whether suit filed by the plaintiff was not maintainable as remedy of a co-owner against other co-owner is only to file a suit for partition? (c) Whether the First Appellate Court has held against the record that the possession of plaintiff-respondent over the land in dispute is by mutual consent. 7. Learned counsel for the appellants has submitted that judgment and decree of the First appellate Court is against the settled principles of law mentioned in T. Lakshmipathi and Others Vs. P. Nithyananda Reddy and Others, (2003) 5 SCC 150 . The ratio of the said judgment is that a co-owner has interest in every inch of the common property but his interest is qualified and limited by similar interest of the other co-owners. One co-owner cannot take exclusive possession of the property nor commit an act of waste, ouster or illegitimate use, and if he does so he may be restrained by an injunction. It is further submitted that a co-owner can be in possession by an arrangement express or implied with other co-owner. Since the plaintiff is not in possession under an arrangement and such he is not entitled to decree of injunction. 8. I have carefully considered the said submissions and have gone through the record. 9. The authority T. Lakshmipathi's case (supra) is distinguishable from the facts of the present case. Since the plaintiff is not in possession under an arrangement and such he is not entitled to decree of injunction. 8. I have carefully considered the said submissions and have gone through the record. 9. The authority T. Lakshmipathi's case (supra) is distinguishable from the facts of the present case. The said case relates to a decree of eviction which was passed in favour of respondent No. 1 on the grounds available under Sections 10(2)(i) and 10(3)(b)(iii) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 so, in that case, the question was who can get the possession and whether co-owner can raise construction to the detriment of other co-owner and under those circumstances, the Hon'ble Apex Court has held that one co-owner cannot raise ouster and illegitimate use on the joint property. In that eventuality, it was held that one co-owner can be in possession by mutual arrangement. 10. In the present case, the facts are distinguishable. The plaintiff has been shown to be in exclusive possession of the suit property as co-sharer. It is settled law that a co sharer in established possession can be dispossessed only during the course of partition i.e. by due course of taw. The decree has been passed to this extent by appellate Court. The revenue record clearly shows the plaintiff to be in possession. Both the Courts below have given a finding that plaintiff is in possession of the property as co-sharer. A co-sharer in possession of joint property cannot be dispossessed by show of force. It is not case of any one that plaintiff is using the land detrimental to the interest of other co-owner. Plaintiff can be dispossessed in due course of law. The concurrent findings recorded by both the Courts below regarding possession of the plaintiff cannot be interfered in the regular second appeal in view of Section 100 CPC. The partition proceedings are stated to be pending. It cannot be said that judgment and decree of the First Appellate Court is against the record. So, in view of the above discussion, I have no hesitation in holding that no question of law has arisen and the judgment and decree of the First Appellate Court is not against the principles of law enunciated in T. Lakshmipathi's case (supra). Consequently, the appeal is without any merit and the same stands dismissed.