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2018 DIGILAW 640 (PNJ)

Joginder Singh v. Dalip Singh

2018-02-12

AMIT RAWAL

body2018
JUDGMENT Mr. Amit Rawal J.: (Oral) - The petitioner-defendants are in revision petition against the impugned order dated 23.10.2017 (Annexure P-8) rendered by the Lower Appellate Court, vide which the application filed under Order 39 Rules 1 and 2 of Code of Civil Procedure (in short ‘CPC’), has been allowed while setting aside the order dated 18.02.2017 (Annexure P-6). 2. Mr. Vikram Anand, learned counsel for the petitioner-defendants submitted that revenue record revealed the status of petitioner-defendants and respondent-plaintiffs is of co-owners. The Lower Appellate Court abdicated in reversing the well reasoned finding without noticing the fact that respondent-plaintiffs had not been able to comply with essential ingredients of Order 39 Rules 1 and 2 CPC, i.e., balance of convenience, irreparable loss. As per the settled law, no injunction can be granted against the co-owners and the remedy is only to seek partition, thus, there is illegality and perversity in the order under challenge. 3. I have heard the learned counsel for the petitioner-defendants and appraised the paper book. 4. Conceded position on record is that khasra girdawari for the year 2011 to 2015 and fard jamabandi for the year 2011-12, showed that plaintiffs had been in exclusive possession of the land in dispute, though in the column of ownership, name of the petitioner-defendants has been recorded. Thus, in my view, the Lower Appellate Court being the last Court of facts and law has examined the evidence brought on record by bringing the case within the parameters of Order 39 Rules 1 and 2 CPC by holding that revenue record under Section 44 of the Punjab Land Revenue Act, 1887 carried a presumption of truth unless rebutted. In my view, the petitioner-defendants would have a right to rebut the same but prima facie the respondent-plaintiffs had been found in exclusive possession, therefore, suit for injunction, much less, injunction qua co-owners is permissible. 5. It is settled law that a co-sharer cannot seek injunction against another co-sharer but if in exclusive possession then “yes”. The aforementioned view of mine is supported by the Full Bench judgment rendered by this Court in Bhartu vs. Ram Sarup 1981 PLJ 204 and reiterated by the Hon’ble Division Bench of this Court in Bachan Singh vs. Swaran Singh 2000 (3) RCR Civil 70, 2001. The aforementioned view of mine is supported by the Full Bench judgment rendered by this Court in Bhartu vs. Ram Sarup 1981 PLJ 204 and reiterated by the Hon’ble Division Bench of this Court in Bachan Singh vs. Swaran Singh 2000 (3) RCR Civil 70, 2001. In my view, the respondent-plaintiffs have been able to prove the ingredients of Order 39 Rules 1 and 2 of the CPC which is the foundation for granting ad interim injunction. 6. With the aforementioned observations, while upholding the order under challenge, revision petition stands disposed of.