C.R. No. 1734 of 2008 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
C.R. No. 1734 of 2008 (O&M)
Date of Decision : 5.8.2009
Bhup Singh
.......... Petitioner
Versus
Dalip & another
...... Respondents
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Hari Om Attri, Advocate
for the petitioner.
Mr. Jaswant Jain, Advocate
for the respondents.
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VINOD K. SHARMA, J. (ORAL)
The petitioner has invoked the jurisdiction of this Court under
Article 227 of the Constitution of India to challenge the order dated
11.3.2008 passed by the learned Addl. District Judge, Hisar vide which the
appeal filed by the plaintiff / respondents against the order dated 21.1.2008
passed by the learned trial Court dismissing their application for ad interim
injunction has been accepted.
The petitioner by way of impugned judgment and order have
been restrained from changing the nature of the suit land and from raising
any construction thereon.
The plaintiffs claiming themselves to be co-sharer in the
property sought injunction against the defendant from changing the nature
C.R. No. 1734 of 2008 2
of agricultural land to residential / commercial or to raise construction over
specific killa numbers situated within the revenue estate of village Mirkan
on the main Hisar Tosham Bhiwani road having great potential value.
It was claimed that the petitioner / defendant illegally tried to
raise construction over the specific khasra numbers which are otherwise
joint, and further that in case the petitioner / defendant succeeded in raising
the construction the plaintiff / respondents would suffer irreparable loss.
The suit was contested, wherein preliminary objection was
taken that the suit filed by the plaintiffs was not maintainable. The suit was
bad for non-joinder of necessary parties. It was the case set up by the
petitioner herein that he purchased land measuring 8 Kanals i.e. 160/2182
share comprised in khewat No.163 and possession of specific khasra
number was delivered to defendant at the spot by the vendor. Though the
sale qua specific khasra number is to be sale qua share only, still it was
proved on record that the petitioner was put in exclusive possession of the
property, though as co-owner.
The learned trial Court in view of the law laid down by this
Court in the case of Bachan Singh Vs. Swaran Singh 2000(3) P.L.R. 416
and other cases, held that the plaintiff / respondents were not entitled to
relief of injunction as the remedy with the plaintiff / respondents was to file
a suit for partition, therefore, the relief of injunction was barred under
Section 41(h) of the Specific Relief Act.
The learned lower appellate Court has been pleased to reverse
the finding by observing that the defendant / petitioner had not purchased
any particular khasra numbers so he was merely a co-owner with the
C.R. No. 1734 of 2008 3
plaintiff. The learned lower appellate Court held that the co-owner cannot
raise construction on particular khasra number till the land is partitioned by
meets and bounds.
The learned counsel for the petitioner has impugned the order
passed by the learned lower appellate Court primarily on the ground that in
view of the law laid down by this Court in the case of Bachan Singh Vs.
Swaran Singh ( supra) holding 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 is in exclusive possession of common property, unless any act
of person in possession of property amounts to ouster, prejudicial or adverse
to interest of co-owner out of possession; mere construction or improvement
in common property does not amount to ouster.
The reliance was also placed on the judgment of this Court in
the case of Bhartu Vs. Ram Sarup 1981 PLJ 204, wherein it has been held
that co-owner in possession is held entitled to enjoy the property in his
possession till the joint holding partitioned. He is even eligible to transfer it.
Mr. Jawant Jain, learned counsel appearing on behalf of the
respondents, however, supported the order passed by the learned lower
appellate Court by placing reliance on the judgment of this Court in the case
of New India Construction Co. Ltd. And others Vs. Desh Raj and others
2007(1) R.C.R. ( Civil) 387 wherein this Court was pleased to held that
injunction against co-owner can be granted if the act of co-owner amounts
to ouster or adverse to interest of co-owner out of possession. A co-owner
can seek injunction, in case it is proved, that he is in exclusive possession.
In the present case the exclusive possession of the defendant / respondent
C.R. No. 1734 of 2008 4
was proved as per a sale deed.
Reliance was also placed on the judgment of this Court in the
case of Ram Niwas Vs. Jai Ram alias Tej Raj 2000(3) RCR (Civil) 738,
wherein this Court has been pleased to lay down that a joint owner / co-
sharer cannot change the nature of joint property by raising construction
detrimental to the interest of other co-owner / co-sharer. This judgment can
be of no help in view of the Division Bench judgment in the case of Bachan
Singh Vs. Swaran Singh (Supra), wherein it has been laid down that suit
by a co-owner for injunction is not competent. The learned trial Court was,
therefore, right in holding that the plaintiff / respondents had an alternative
remedy of filing a suit for partition. The claim of injunction was, therefore,
barred under the provisions of the Specific Relief Act.
For the reasons stated above, this revision petition is allowed.
The judgment and order passed by the learned lower appellate Court is set
aside and that of the learned trial Court is restored but with no order as to
costs.
5.8.2009 ( VINOD K. SHARMA ) 'sp' JUDGE