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2016 DIGILAW 1421 (HP)

Kewal Krishan v. Amrit Lal

2016-07-18

CHANDER BHUSAN BAROWALIA

body2016
JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal is maintained by the appellants/defendants (hereinafter called as “the defendants”) against the respondent/plaintiff (hereinafter called as “the plaintiff”) assailing the judgment and decree dated 25.11.2010, passed by learned Additional District Judge, Una, District Una, H.P. in Civil Appeal No. 67 of 2007, whereby the judgment and decree passed by learned Civil Judge (Senior Division) Una, District Una, H.P. in Case No. 241 of 2000, dated 01.10.2007, was upheld by the learned Additional District Judge, Una. 2. Briefly stating the facts giving rise to the present appeal are that the plaintiff maintained a suit against the defendants wherein it is pleaded that the suit land is jointly owned and possessed by the parties alongwith others and a passage denoted by letters ABCD shown with red ink in the spot map, annexed with the plaint, passes through Khasras No. 3188 and 3186, which is part of the suit land. A drain marked with letters DEFG also shown in red ink in the spot map, annexed with the plaint, passes through the land bearing Khasras No. 3188 and 3186, which is also part of the suit land. As per the plaintiff, some part of the suit land is covered under abadi deh (inhabited area). The above passage is common and in use for the last more than 30 years and the same is only access to the house of the plaintiff. The defendants by way of collecting building material on the spot have obstructed the path. The defendants turned deaf ear to the request of the plaintiff to clear the path and remove encroachment upon the same, but of no avail. Thereafter the learned Civil Court granted the stay order in favour of the plaintiff, however, despite the stay orders of the Court the defendants illegally and unauthorizedly raised construction of kitchen, bath room, stairs and projection over the land on the portion marked with letters HIJKLM (shown in red ink in the spot map, annexed with the plaint). Due to the said construction the natural flow of the rain water has also been hindered resulting prejudicial to the rights of the plaintiff. Due to the said construction the natural flow of the rain water has also been hindered resulting prejudicial to the rights of the plaintiff. The cause of action accrued to the plaintiff when the defendants stacked the building material on the spot and when he paid no heed to the requests of the plaintiff to clear the path and remove the encroachment upon the part of the suit land. 3. The defendants resisted the claim of the plaintiff by filing written statement wherein they had taken the preliminary objections with regard to maintainability of the suit, undervaluation of the suit, jurisdiction etc. However, on merits the possession and ownership of the suit land was admitted to be joint, but it is denied that the possession is also joint. It is pleaded that since long the parties are in separate possessions on separate parcels of the land. They have denied the passage, as shown by the plaintiff as well as further denied the existence of path, as shown by the plaintiff. It is further averred by the defendants that the parties are in separate possession of the suit land. As per the defendants, the site plans submitted by the plaintiff are incorrect and the correct maps were submitted by the defendants. The defendants have denied the existence of the path on Khasras No. 3183 & 3186 and blocking the same. The rasta (path) is in existence only on Khasra No. 3183 that too on northern side, i.e. the main street of the village and the same is independent path to the house of the plaintiff. The defendants have denied the existence of drain and submitted that there was old abadi (inhabitation) of defendants over Khasras No. 3188 and 3186. The defendants started raising new construction only where the old abadi (inhabitation) existed. The defendants have also averred that they have not raised any new construction after injunction order of the Court and the site over which the construction work was got stayed by the plaintiff is abadi (inhabitation) belonging to the defendants. The defendants have denied blocking the course of water, as the same never flowed towards the site shown by the plaintiff. It is averred that at the time of spot inspection the plaintiff agreed to withdraw the suit, subject to the defendants’ laying underground pipeline through the agreed site. The defendants have denied blocking the course of water, as the same never flowed towards the site shown by the plaintiff. It is averred that at the time of spot inspection the plaintiff agreed to withdraw the suit, subject to the defendants’ laying underground pipeline through the agreed site. Despite laying of the pipes, the plaintiff is still continuing with the litigation. 4. The plaintiff, with the permission of the Court filed replication and it has become part of the pleadings, wherein the plaintiff has reiterated the contents of the plaint and averred that spot map produced by the defendants is wrong and against the factual position existing on the spot. It is also denied that there existed old abadi (inhabitation) on the spot, which was demolished, and fresh construction was raised at that place. The plaintiff has further averred that due to the new construction the natural flow of water was hindered. 5. From the pleadings of the parties, the learned Trial Court framed the following issues:- “1. Whether the plaintiff is entitled to the relief of permanent and mandatory injunction? OPP 2. Whether the plaintiff is estopped from filing the suit by his act and conduct? OPD 3. Relief.” 6. The learned Trial Court below after deciding Issue No. 1 in favour of the plaintiff and Issue No. 2 against the defendants decreed the suit. Thereafter, appeal was maintained by the defendants against the judgment and decree passed by the learned Civil Judge (Senior Division), Una, however the appeal was dismissed by the learned Additional District Judge, Una vide impugned judgment. 7. The present appeal was admitted for hearing on 23.05.2011, for determining the following substantial questions of law:- “1. Whether the two courts below have erred in restraining the appellants from raising construction on the old lines on the land which is in possession of the appellants as co-sharer? 2. Whether the courts below have misconstrued and misinterpreted the legal requirement for restraining a co-sharer from raising construction on a joint land which is in his possession?” 8. I have heard the learned counsel for the appellants and the learned counsel for the respondent and also gone through the records in detail. 9. The learned counsel for the defendants has argued that the Courts below have not taken into consideration the fact that all the co-sharers/co-owners were not arrayed as party by the plaintiff in the proceedings. I have heard the learned counsel for the appellants and the learned counsel for the respondent and also gone through the records in detail. 9. The learned counsel for the defendants has argued that the Courts below have not taken into consideration the fact that all the co-sharers/co-owners were not arrayed as party by the plaintiff in the proceedings. The learned counsel has also argued that the land is joint, therefore, injunction cannot be granted in favour of one co-sharer/co-owner and against the other co-sharer/co-owner. It is further argued that the Courts below have failed to take into consideration the law relating to injunctions, as far as the co-sharers/co-owners are concerned. To fortify her arguments she has referred to law settled in the following judgments of Hon’ble Courts:- 1. Hussan Lal vs. Krishna Devi, 1996(1) Civil Court Cases 384(1) (P&H); 2. Sukh Dev vs. State of H.P., 1996(2) Civil Court Cases 501 (H.P.); 3. Mukhtiar Singh vs. Tara Singh and another, 2001 (1) SLJ 94; 4. Tara Singh vs. Maghar Singh, 2005(3) Civil Court Cases 59 (P&H): & 5. M/s DCM Shriram Consolidated Ltd. vs. Jai Singh, 2006(2) Civil Court Cases 106 (P&H); 10. The learned counsel for the plaintiff has argued that he has sought the relief only against the defendants, as only the defendants who have, in fact, blocked the path and drain and as such other co-sharers are not necessary parties. He has further argued that the judgment and decree passed by the learned Lower Appellate Court, affirming the judgment and decree of the learned Trial Court, is in accordance with law. 11. It is clear that the plaintiff and defendants are co-sharers/co-owners alongwith others and the property has not yet been divided by metes and bounds. The co-sharers/joint owners are required to use the property in husband like manner and not to the exclusion of others. It has also come on record that the plaintiff and defendants have their settled possession on particular portions of the joint land from the time of their ancestors. 12. At the very outset, I would like to enumerate the rights of the co-sharers in their property. It has also come on record that the plaintiff and defendants have their settled possession on particular portions of the joint land from the time of their ancestors. 12. At the very outset, I would like to enumerate the rights of the co-sharers in their property. For the purpose of settling the law relating to the rights and duties of the co-sharers/co-owners towards each other while enjoying the joint property and to the best of my ability these are enumerated in the following fashion:- “(a) A co-owner/co-sharer has an interest/right in the whole property, i.e., in every inch of it. (b) Possession of joint property by one co-owner/co-sharer, is in the eye of law, possession of all even if all, except one are actually out of possession. (c) A mere occupation of a larger portion or even of an entire joint property by one co-sharer/co-owner does not amount to ouster of the other, as the possession of one is deemed to be on behalf of all. This is subject to an exception when there is complete and conclusive ouster of a co-owner/co-sharer by another, but in order to negative the presumption of joint possession on behalf of all, on the ground of such ouster, the possession of a co-owner/co-sharer must not only be exclusive but also hostile to the knowledge of the other, i.e., when a co-owner openly asserts his own title and denies that of the other. (d) Lapse of time does not extinguish the right of the co-owner/co-sharer, who has been out of possession of the joint property, except in the event of abandonment. (e) Every co-owner/co-sharer has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners/co-sharers. (f) Where a co-owner/co-sharer is in possession of separate parcels under an arrangement/consent by the other co-owners/co-sharer, it is not open to any co-sharer/co-owner to disturb the arrangement without the consent of others, except by way of partition. (g) Whenever there is severance of title and the parties have a long possession on the parcels of joint land, as far as possible, the partition is required to be made in a manner that party in occupation, as far as possible, be adjusted in that portion or part of that. (g) Whenever there is severance of title and the parties have a long possession on the parcels of joint land, as far as possible, the partition is required to be made in a manner that party in occupation, as far as possible, be adjusted in that portion or part of that. (h) Co-sharers/co-owners are expected to respect the right of others even when they are in settled possession on specific portion of the land in a manner that the easementary rights of the others are not obstructed. (i) The co-sharers/co-owners are required to respect the sentiments of each other to maintain peace among themselves. This is not only a legal, but a moral duty as well, which is required to be followed by the co-sharers/co-owners and should be recognized as a right while adjudicating the rights of the parties, as the ultimate goal of the administration of justice is to maintain peace in the society, especially among the co-sharers/co-owners. (j) The eldest co-sharer/co-owner is duty bound to come forward and settle the dispute inter se any two or more co-sharers/co-owners after mediating. This is not only his duty as a co-sharer/co-owner being elder, but also his moral duty to spare some time, experience, mental faculties and the respect he command to mediate disputes among the co-sharers/co-owners in order to achieve peace. The Courts can also make use of such process by taking help from the elder co-sharer/co-owner by asking him to mediate the matter, so that the peace is achieved among the co-shares/co-owners and ultimately in the society.” 13. The plaintiff appeared in the witness-box as PW-1 and after reiterating the contents of the plaint in totality he has further stated that site plan is correct, as per existing position of the spot as on 01.12.2000 and on subsequent day the suit was instituted. The plaintiff has stated that after hearing the defendants, the Court passed interim injunction, however, despite that the defendants started laying foundations. Thereafter, a Commission was appointed by the Court and learned Local Commissioner inspected the spot on 04.12.2000 and found fresh foundations resulting in stagnation of water in the courtyard of the plaintiff due to blockage of drain. The plaintiff has stated that after hearing the defendants, the Court passed interim injunction, however, despite that the defendants started laying foundations. Thereafter, a Commission was appointed by the Court and learned Local Commissioner inspected the spot on 04.12.2000 and found fresh foundations resulting in stagnation of water in the courtyard of the plaintiff due to blockage of drain. The plaintiff has further stated that again learned Presiding Officer of Trial Court inspected the spot on 06.02.2002 and during that inspection the water was found stagnating there and emitting foul smell, not only to the co-sharers/co-owners, but for the passers by as well and is a complete nuisance. The plaintiff got prepared site plan afresh on 30.05.2002, from draftsman depicting new construction raised by the defendants. The plaintiff has also stated that the defendants have laid lintel on the newly built kitchen. In his cross-examination, the plaintiff has specifically stated that the parties have constructed their houses on the portions of the suit land. However, the courtyard is common and the houses are in existence since the time of their forefathers. He has denied the suggestion that the partition has taken place inter se the co-sharers/co-owners. 14. Shri Piare Lal (Draftsman), PW-2, prepared the site plans, Ex. PW-2/A and Ex. PW-2/B, after visiting the spot. During his cross-examination he deposed that he prepared the map, Ex. PW-2/A, with the help of aks (photo). He has further deposed that level of the abadi (inhabitation) of Shri Raj Kumar is towards the south of the abadi (inhabitation) of the plaintiff and the level of the street on the northern side is higher than the abadi (inhabitation) of the plaintiff. The defendants have encroached upon the path and drain by raising construction. This witness has denied that the water of abadies (inhabitations), existing on Khasras No. 3184 and 3185, water flows towards the south. PW-3, Shri Ram Saroop, Civil Ahlmad, posted in the Court of learned Civil Judge (Senior Division), Una, brought the file of application under Order 39, Rule 2-A CPC titled Amrit Lal vs. Kewal Krishan and proved that it is pending in the Court, copy of which is Ex. PW-3/A. Shri Y.K. Pathak, Advocate, Una, was examined as PW-4 and he has stated that Ms. Sheela Jassal, Advocate, who inspected the spot as Local Commissioner, was his junior and he is acquainted with her signatures. PW-3/A. Shri Y.K. Pathak, Advocate, Una, was examined as PW-4 and he has stated that Ms. Sheela Jassal, Advocate, who inspected the spot as Local Commissioner, was his junior and he is acquainted with her signatures. This witness has testified that encircled signatures, Ex. PW-4/A, as signatures of Ms. Sheela Jassal. Jamabandi, Ex. P-1, pertaining to years 1998-99, reveals that parties to the suit alongwith others are owners of the land and possession of different owners is recorded over specific khasra numbers as hissadaran (co-sharers/co-owners). 15. DW-1, Shri Kewal Krishan, corroborated the contents of the written statement. He has stated in his cross-examination that no partition has taken place and the possessions are separate as per long family partition qua which no document pertaining to partition was prepared and attested. He has shown his ignorance about the visit of the Local Commissioner in compliance to the orders of the Court. This witness has denied that the water was stagnating during the visit of the Presiding Judge of the Trial Court to the spot. He has also denied that during the visit of the Presiding Judge, kitchen was not there and they raised the construction in violation of Court orders, however, he has stated that the kitchen was constructed 4 to 5 years back. He has further stated that on the request of the plaintiff, he stopped the construction work and he did not know that the work of foundations was undertaken by him in the month of December, 2000. He has denied that the contempt proceedings, instituted by him against the plaintiff, have been dismissed by the Court. DW-2, Shri Ganesh Chand (Draftsman), on visiting the spot, prepared spot map, Ex. DW-2/A, at the behest of the defendants. In his cross-examination he has denied that the level of street on the northern side of the disputed land is higher. 16. Undisputedly, the land is jointly owned by the parties, alongwith other co-sharers/co-owners, but the possession is separately recorded over specific Khasra numbers as ‘hissadaran’ (co-sharers/co-owners). As per site plan the house is shown to be existing on Khasra No. 3186 and in Ex. P-1 (jamabandi for the years 1998-99) this khasra No. is recorded in possession of S/Sh. Lekh Raj, Des Raj and Jagdish Ram as ‘hissadaran’ (co-sharers/co-owners). As per site plan the house is shown to be existing on Khasra No. 3186 and in Ex. P-1 (jamabandi for the years 1998-99) this khasra No. is recorded in possession of S/Sh. Lekh Raj, Des Raj and Jagdish Ram as ‘hissadaran’ (co-sharers/co-owners). Therefore, the entries are not according to the spot position and stand rebutted in view of evidence of the parties and benefit thereof cannot be given to the defendants. In absence of any cogent and convincing evidence, the fact qua family/private partition is not proved. In case the same has been effected, it should have been reflected in record of rights and the only statement of Shri Kewal Krishan (DW-1) to this effect cannot be relied upon. It cannot be said that any valid partition had taken place amongst the co-sharers/co-owners. The ancestors may be enjoying different parcels of land for the sake of convenience. Therefore, it can easily be construed that the parties alongwith others were joint owners-inpossession and as per the plaintiff the courtyard is joint. On scrutiny of site plans Ex. PW-2/A and Ex. PW-2/B, submitted by the plaintiff and the site plan, Ex. DW-2/A, submitted by the defendants, there is not much variance. Ex. DW-2/A was prepared by DW-2, Shri Ganesh Chand, and he, in his cross-examination, has denied that the level of street located on the northern side is higher than the suit land. PWs 1, 2 and DW-1 have stated that the street which is there on the northern side of the house of Shri Raj Kumar etc. on the southern side is at a higher level than the suit land. Therefore, the statement of DW-2 cannot be believed. The site plans, Ex. PW-2/A and Ex. PW-2/B stand fortified by the spot inspection report dated 06.02.2002. It is established that on 04.12.2000, on an application Under Order 39, Rule 7 CPC maintained by the plaintiff, Ms. Sheela Jassal, learned Advocate, was appointed as local Commissioner. Local Commissioner visited the spot on 04.12.2000 at 4 p.m. and her report is on record as mark ‘A’. The report reveals that the construction work was in progress at the time of visit of the Local Commissioner. Even if the Local Commissioner has not been examined by the plaintiff, however, her report, in evidence, cannot be brushed aside, when it is proved that report is bearing the signatures of Local Commissioner. The report reveals that the construction work was in progress at the time of visit of the Local Commissioner. Even if the Local Commissioner has not been examined by the plaintiff, however, her report, in evidence, cannot be brushed aside, when it is proved that report is bearing the signatures of Local Commissioner. As per the report of the Local Commissioner, it is evident that defendants were raising construction on the spot in violation of injunction order of the Court dated 02.12.2000, which was passed in their presence. The learned Trial Judge also conducted the spot inspection vide his spot inspection note dated 06.02.2002, which also goes against the defendants. It has been noticed by the learned Judge that there was no outlet for rainy and dirty water. The foundations were appearing recently laid. At the time of the inspection, it was observed by the learned Trial Judge that if the water of the house of the plaintiff would have been flowing in any other direction except the drain, as alleged by him, there was no reason or occasion for the water to spread in his courtyard. It is sufficient to establish that the water from the house of the plaintiff and the rain water used to flow through the drain, DEFG, depicted by the plaintiff in the site plans Ex. PW-2/A and Ex. PW-2/B. 17. In Bachan Singh vs. Swaran Singh, 2000(2) SLJ 1773, it has been held that a co-owner cannot seek injunction against other co-owner, who has been in exclusive possession of the property unless and until the act of other person amounts to ouster of the one co-owner. In the instant case, by raising construction, the defendants have obstructed the path and the drain of the plaintiff. So the plaintiff is entitled for injunction. 18. In case titled Hussan Lal vs. Krishha Devi, 1996(1) Civil Court Cases 384(1) (P&H), the Hon’ble High Court of Punjab & Haryana has held that “temporary injunction cannot be granted to a person against other co-owner/co-sharer when the plaintiff has himself raised the construction without the partition of the disputed property”. In the case in hand the cause of the plaintiff is not to restrain the defendants from raising the construction, but he is seeking injunction against the defendants to the effect of not blocking the path and free flow of water of the drain and its water. In the case in hand the cause of the plaintiff is not to restrain the defendants from raising the construction, but he is seeking injunction against the defendants to the effect of not blocking the path and free flow of water of the drain and its water. So, the facts of the present case are totally different from that of the law cited by the learned counsel for the appellants (defendants). 19. In Mulk Raj vs. Sunder Das & others, 1996(2) Civil Court Cases 500 (S.C.), the Hon’ble Apex Court has held as follows:- “26. There is no doubt that this exceptionally discretionary relief is to be granted in favour of a person whose conducts have been bona fide one. A person who is not coming with clean hands before this Court of law, admittedly, cannot be granted such discretionary relief. Certain previous litigation have been brought on record whereby same relief asked for by various other persons had been disallowed by the Courts. One Mani Ram filed a Civil Writ Petition No. 193/94 decided on 30th March, 1994 before this Court to achieve some object. This Court observed that after the writ petition was heard for some time, on admission, learned counsel for the petitioner submitted that the petitioner may be permitted to withdraw the writ petition, with liberty to agitate such rights which he claims to be enjoying in regard to grazing of cattle and holding of fair etc. in a separately constituted civil suit. In view of this, the writ petition was dismissed, subject to what has been stated earlier.” In the instant case, as stated hereinabove, the plaintiff did not intend to oust the defendants from their exclusive possession, but he is only seeking injunction with regard to passage and free flow of water, therefore, the above judgment is not applicable to the present case. 20. The Hon’ble High Court of Punjab & Haryana in Mukhtiar Singh vs. Tara Singh and another, 2001(1) SLJ 94, has held as under:- “8. In Civil Revision No. 4549 of 1997, Bachan Singh vs. Swaran Singh, the Division Bench was also confronted with this proposition “whether a co-owner of the property is entitled to seek an injunction against the other co-owner, who has been in exclusive possession of the entire or part of the property restraining him making any construction in the part of the property”. It was held that “in the case of common property, the joint tenants and tenants in common, all of them are entitled to the said property and are entitled to enjoy the same. If one of them alone holds or occupies the entire property or part of it, his possession cannot be said unlawful. His physical possession is that of an owner of his own interest and also that of an agent as to the other co-owners. Possession of one of the co-sharers is the possession of all of them. At the same time, it cannot be said that the person, who has been in possession of the property is holding the property not only for himself but also in favour of other co-sharers. A co-sharer who is in possession of the property is also entitled to the enjoyment of the same. The possession of one of them is possession of all in the eye of law unless the person who has been in exclusive possession asserts his title in himself to the exclusion of the other co-sharers which may amount to ouster. The court interposes to restrain the party in possession in the case of coparceners, joint tenants and tenants in common, unless the act of co-sharer in possession amounts to destruction, waste or spoliation or unless the wrong doer is insolvent or incapable of paying to the other the excess of the value beyond his own share. If one tenant in common is doing merely what any other co-owner might do, the other cannot have an injunction merely on the ground that he does not choose to do so, since each tenant in common has a right to enjoy as he pleases. Therefore, a joint owner cannot prevent by injunction the carrying out of the necessary work by another co-owner in the property held in common. But if the act amounts to destruction, the Court will interfere since the destruction of the thing itself is (or amounts to) an ouster.” It was held that “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. Mere making of construction or improvement of, in the common property does not amount to ouster. Mere making of construction or improvement of, in the common property does not amount to ouster. 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. 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.” Again in the present case, the plaintiff did not intend to completely oust the defendants from their exclusive possession. However, the plaintiff is only seeking injunction with regard to passage and free flow of water. So, the judgment, cited hereinabove, is again not applicable to the facts of the present case. 21. In another judgment delivered by the Hon’ble High Court of Punjab and Haryana in Tara Singh vs. Maghar Singh, 2005(3) Civil Court Cases 59 (P&H), it has been held as under:- “4. In view of the above, it is evident that a co-owner who is not in possession of part of the property, can not be permitted to dispossess the other co-owner who is in exclusive possession thereof. Therefore, there is no illegality or such an irregularity by the Court, which may warrant interference of this Court under Article 227 of the Constitution.” As the plaintiff did not intend to completely oust the defendants from their exclusive possession and he is only seeking injunction with regard to passage and free flow of water, therefore, the above judgment is again not applicable to the facts of the present case.” 22. In M/s DCM Shriram Consolidated Ltd. vs. Jai Singh, 2006(2) Civil Court Cases 106 (P&H), the Hon’ble High Court of Punjab and Haryana has held as under:- “9. Having heard learned counsel for the parties and pursuing the orders passed by both the Courts below, I am of the considered view that this petition deserve to be allowed. The learned trial Court has categorically recorded a finding that the parties are in exclusive possession at least since 1990-1991. Having heard learned counsel for the parties and pursuing the orders passed by both the Courts below, I am of the considered view that this petition deserve to be allowed. The learned trial Court has categorically recorded a finding that the parties are in exclusive possession at least since 1990-1991. It has further been concluded that the aforementioned mutual separate possession has been accepted by the parties and therefore the vendor of the defendant petitioner is deemed to have sold a separate share in his possession to the defendant petitioner. However, the learned lower Appellate court without reversing the aforementioned finding has proceeded to hold that if the defendant-petitioner is permitted to raise construction then it would result into changing the nature of the property it has further been held that raising of construction would be prejudicial and would adversely affect the interest of the plaintiff-respondent. Such a view could not have been taken unless prima facie finding recorded by the learned trial Court were set aside by referring to the record of the year 1990-1991. It was incumbent upon the lower Appellate Court to adopt the aforementioned course because the question of prohibiting to raise construction by the defendant-petitioner would be dependent singularly on the prima facie finding of fact whether there is mutual partition between the co-sharers so as to conclude that everyone is in possession of their own share for a pretty long time. The aforementioned prima facie finding has been recorded by the trial Court. In the absence of reversing that finding it is improper for the lower Appellate Court to conclude that the defendant-petitioner would be injuncted from raising construction on the suit land or that it would result into prejudice adversely affecting the interests of the plaintiff respondent. Therefore, the revision petition deserves to be allowed on this ground alone.” Once again, the above cited judgment is not applicable to the facts of the present case, as the plaintiff did not intend to completely oust the defendants from their exclusive possession, whereas he is only seeking injunction with regard to a passage and free flow of water. 23. Therefore, the revision petition deserves to be allowed on this ground alone.” Once again, the above cited judgment is not applicable to the facts of the present case, as the plaintiff did not intend to completely oust the defendants from their exclusive possession, whereas he is only seeking injunction with regard to a passage and free flow of water. 23. Now adverting to the above enumerated ten rules and on application of these rules to the facts of the present case, it is clear that the defendants though have a right to use every inch of their land, but not to the exclusion of the plaintiff and that too by blocking his path and drain etc. The learned Trial Judge in his note, after inspecting the spot, has mentioned that there was no outlet for rainy water for the house of the plaintiff and the foundations laid appear to be recent one. If the water of the house of the plaintiff would have been flowing in any other direction except the drain, as alleged, there was no reason or occasion for the water to stagnate and spread in the courtyard of the house of the plaintiff. Thus, this was a clear case of nuisance. So from the above discussion, it is clear that the plaintiff has approached this Court with clean hands and the equity is required to be exercised in favour of the plaintiff. There is sufficient evidence, which establishes that the defendants are the wrong doers. The substantial question of law No. 1, as framed on 23.05.2011, which arise for determination, is answered as under: That one co-sharer/co-owner/defendant has no right to raise the construction in the manner to destroy the path and free flow of water from the house of the plaintiff, i.e., other co-sharer/co-owner/defendant, the Courts below have not erred in restraining the appellants/defendants from raising construction on the old lands in the land, which is in possession of the appellants/defendants as co-sharers/co-owners because:- (a) A co-owner/co-sharer has an interest/right in the whole property, i.e., in every inch of it. (b) Possession of joint property by one co-owner/co-sharer, is in the eye of law, possession of all even if all, but one are actually out of possession. (b) Possession of joint property by one co-owner/co-sharer, is in the eye of law, possession of all even if all, but one are actually out of possession. (c) A mere occupation of a larger portion or even of an entire joint property by one co-sharer/co-owner does not amount to ouster of the other, as the possession of one is deemed to be on behalf of all. This is subject to an exception when there is complete and conclusive ouster of a co-owner/co-sharer by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of such ouster, the possession of a co-owner/co-sharer must not only be exclusive, but also hostile to the knowledge of the other, i.e., when a co-owner openly asserts his own title and denies that of the other. (d) Lapse of time does not extinguish the right of the co-owner/co-sharer, who has been out of possession of the joint property, except in the event of abandonment. (e) Every co-owner/co-sharer has a right to use the joint property in a husband like manner and not inconsistent with similar rights of other co-owners/co-sharers. (f) Where a co-owner/co-sharer is in possession of separate parcels under an arrangement/consent by the other co-owners/co-sharer, it is not open to any cosharer/co-owner to disturb the arrangement made without the consent of others except by way of partition. (g) Whenever there is severance of title and the parties have a long possession on the parcels of joint land, as far as possible, the partition is required to be made in a manner that party in occupation, as far as possible, be adjusted in that portion or part of that. (h) Co-sharers/co-owners are expected to respect the right of others even when they are in settled possession on specific portion of the land in a manner that the easementary rights of the others are not obstructed. 24. Resultantly, the substantial question No.2 is answered holding that the Court below has not misconstrued/misinterpreted the legal requirements, including which are enumerated above while restraining the defendants, i.e., other co-sharer/co-owner from raising construction on a joint land, which was in their possession. 25. 24. Resultantly, the substantial question No.2 is answered holding that the Court below has not misconstrued/misinterpreted the legal requirements, including which are enumerated above while restraining the defendants, i.e., other co-sharer/co-owner from raising construction on a joint land, which was in their possession. 25. At the cost of repetition, it is ingeminated in the present case, as there was a path and drain of the plaintiff, through the suit land, the Courts below have neither misconstrued nor misinterpreted the legal requirements of law by restraining the defendants from raising the construction on the suit land. The net result of the above discussion is that the appeal is without merit. Accordingly the same is dismissed. 26. Taking into consideration the relationship of the parties, as they are co-sharers/co-owners and the situation of the parties, parties are left to bear their own costs throughout. In view of disposal of the appeal, as above, pending applications, if any, shall also stands disposed of, accordingly.