JUDGMENT Mr. G.S. Sandhawalia J. (Oral) - Civil Misc. No.28366-CII of 2014 Prayer made in this Civil Misc. Application for placing on record Annexures P/10 to P/13 and for granting exemption from filing certified copies of the same is allowed subject to just exceptions. Annexures P/10 to P/13 are taken on record. Office to tag the same at appropriate place in the file. The Civil Misc. Application stands disposed of accordingly. Civil Revision No.7373 of 2014 1. Challenge in the present revision petition is to the order dated 23.8.2012 (Annexure P/7) passed by the Civil Judge (Junior Division), Yamuna Nagar at Jagadhri whereby application for interim injunction has been declined by noticing that the petitioner had purchased the specific khasra nos. of suit land as per sale deeds dated 17.5.2004, 10.1.2005 and 16.5.2005 from Mohinder Singh, Surinder Singh, Jarnail Singh and Raghbir Singh who were coowners. The said facts had not been mentioned in their plaint and therefore they could not seek the benefit of the interim injunction. It was also noticed that family settlement had been arrived at on 31.1.1997 between their vendors and the defendants and therefore they have having stepped into shoes were bound by the family settlement. Accordingly, injunction application was dismissed. 2. Challenge has also been laid to the appellate order dated 16.5.2014 (Annexure P/9) whereby the appeal filed by the petitioners had been dismissed on the same reasoning. 3. Counsel for the petitioner has vehemently submitted that partition proceedings are pending interse the parties and therefore, the Court was not justified in declining the injunction and the respondents were raising construction on the property in question and the petitioners would suffer irreparable loss and injury and has placed reliance upon the judgment of Apex Court in Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass (2004) 8 SCC 488 . 4. After hearing the counsel for the petitioners and going through the paper book, it would transpire that the petitioners filed a suit for permanent injunction restraining the defendants from alienating by way of sale, lease, gift or in any manner whatsoever of specific portion in respect of the land measuring 84 Kanals 5 Marlas falling in the revenue estate of village Sabol Pur, Tehsil Jagadhri District Yamuna Nagar. The details of the land were mentioned in the head note of the plaint. The details of the land were mentioned in the head note of the plaint. The specific case was that the land was joint and had not been partitioned and part of it was situated on the metalled road and therefore, the defendants are changing the nature of land by carving out plots and by raising construction. The injunction application was also filed on the same set of allegations. 5. In the written statement filed by the respondents-defendants it was mentioned that the family partition had taken place on 31.1.1997 which had been thumb marked and signed and 14 kanals of land bearing Khasra numbers 17//9 and 12 out of the suit had been given by them for digging and removing earth to some other persons as per memorandum of settlement to first party namely Mohinder Singh etc. In the family settlement it has been mentioned that said 14 Kanals would remain in possession of the said co-sharers in case partition proceedings are filed in the Court and that Mohinder Singh etc. had got removed 4 feet of earth from the said Khasra numbers. The petitioners-plaintiffs had stepped into the shoes of Mohinder Singh and were bound by the family settlement and therefore could not take possession of the remaining land. The earth had already been removed from the said Khasra numbers and the petitioners-plaintiffs had already been filed an application for partition. It was also mentioned that the petitioners-plaintiffs have concealed material facts which eventually led to denial of the relief of interim injunction. 6. The Lower Appellate Court, Yamuna Nagar at Jagadhri has also noticed that an interim order had been passed by the Assistant Collector Grade II in favour of the respondents where the parties would be bound by the private partition and the said order had been challenged and the petitioners were successful before the Commissioner who had set aside the order of the Collector. The matter had carried to the Financial Commissioner who had stayed the order. The family settlement has also been placed on record by the petitioners as Annexure P/13 and a perusal of the same would go on to show that Mohinder Singh etc. The matter had carried to the Financial Commissioner who had stayed the order. The family settlement has also been placed on record by the petitioners as Annexure P/13 and a perusal of the same would go on to show that Mohinder Singh etc. who was first party at that point of time had given contract to pick the sand from the land falling in their share and the second party the present respondents had agreed that they would not raise any objection regarding picking up the sand from the said land. In such circumstances, once the petitioners have become owners thereafter and with open eyes they have purchased the land which is low lying and were put in possession of specific Khasra numbers and because merely the land continued to be joint in revenue record would not give them any right for grant of injunction against the co-sharers restraining them from using the other part of the land as they would require. The issue had been settled beyond an anvil of doubt by the Division Bench of this Court in Bachan Singh Vs. Swaran Singh 2000(3) PLR 416 while following the observations of the Full Bench of this Court in Bhartu Vs. Ram Sarup 1981 PLJ 204. In Bachan Singh’s case (supra), it has been held that every co-owner has a right to use the joint property in a husband like manner and the principles were laid down and it was further held that the remedy of co-owner who is out of possession of the property is to seek partition and not an injunction. The principles read as under:- “15. On a consideration of the judicial pronouncements on the subject, we are of the opinion that: (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. (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. 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 a co-owner. 16. In this view of the matter, we are unable to agree to the propositions laid down by the learned Single Judge of this Court in Nazar Mohd. Khan v. Arshad All Khan and Ors. (supra) wherein his Lordship broadly stated that there is no denying the fact that a co-sharer has no right to raise construction until the land is partitioned by metes and bounds and so even when one of the co-sharers is in exclusive possession of a particular piece of land any other person can seek injunction restraining the other coowner from raising construction. We accordingly overrule the said decision of the learned Single Judge of this Court and also the decisions in Mst. Parsini alias Mono v. Mahan Singh, 1982 P.L.J. 280, Om Parkash and Ors. v. Chhaju Ram, 1992 P.L.J. 546 and Daulat Ram v. Dalip Singh 1989 R.L.R. 523. Since we have answered the Reference, we direct the Registry to place this revision petition along with the other connected revision petitions before the learned single judge for appropriate orders after obtaining necessary orders from the Hon’ble the Chief Justice.” 7. The facts have already been noticed in detail above. The petitioners thus were never in possession of other part of the land and were only in possession of the land which had been contracted to the contractor for digging the earth and they cannot claim any right as such over the other land and seek injunction against a co-sharers to their detriment. 8. The petitioners thus were never in possession of other part of the land and were only in possession of the land which had been contracted to the contractor for digging the earth and they cannot claim any right as such over the other land and seek injunction against a co-sharers to their detriment. 8. The judgment relied upon in Maharwal Khewaji Trust’s case (supra) would not be applicable in the facts and circumstances of the case since in that case the trial Court had granted injunction and the same had been restored by the Apex Court and it was not a dispute between co-sharers. In the present case both the Courts below found that no prima facie has been made out in favour of the petitioners and balance of convenience also does not lie in their favour. Rather irreparable loss would be caused to the respondents if any injunction order is passed against them. In such circumstances, the said judgment is not applicable to the facts and circumstances of the present case. 9. Keeping in view the above settled position, no illegality or infirmity can be found in the impugned orders passed by the Courts which would warrant interference under Article 227 of the Constitution of India by this Court. Accordingly, the present revision petition is dismissed. However, any observation made herein shall not be construed to have been made upon the merits of the case and are only for the purpose of deciding the present revision petition. ---------0.B.S.0------------ —————————