R.S.A.No. 971 of 2008 (O&M) {1}
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 971 of 2008 (O&M)
Date of Decision:August 17, 2009
Gurpreet Singh and another
---Appellants
versus
Harnek Singh
---Respondent
Coram: HON'BLE MRS. JUSTICE SABINA
***
Present: Mr.R.N.Moudgil,Advocate,
for the appellants
Mr.HNS Gill, Advocate,
for the respondents.
***
SABINA J.
Plaintiff -Harnek Singh had filed a Civil suit No. 417 dated
17.7.1999 and Paramjit Kaur and Gurpreet Singh-plaintiffs had filed Civil
Suit No. 295 dated 10.8.1999 for permanent injunction restraining the
defendants from interfering in their peaceful possession. Civil Judge
( Junior Division),Kharar vide judgment and decree dated 22.11.2006
dismissed the suit filed by plaintiff- Harnek Singh and decreed the suit of
the plaintiffs- Paramjit Kaur and Gurpreet Singh. Aggrieved by the same,
plaintiff-Harnek Singh preferred appeals. Additional District Judge,
Rupnagar vide judgment and decree dated 22.12.2007, dismissed the
appeal filed by Harnek Singh-plaintiff against Gurpreet Singh and
R.S.A.No. 971 of 2008 (O&M) {2}
Bhupinder Singh (defendants in C.S.No. RT/ 417 of 17.7.1999)and allowed
the appeal filed by Harnek Singh against Paramjit Kaur and Gurpreet
Singh(Plaintiffs in C.S.No. 295 of 10.8.1999) Hence, the present appeal by
plaintiffs Gurpreet Singh and Paramjit Kaur.
The facts of the case as noticed by the learned Additional
District Judge, in paras 3 and 4 of its judgment read as under:-
” 3. The case of the appellant, in brief, is that the
appellant purchased 3K-19M from the suit land measuring
20K. He was put in exclusive possession of the land near the
Phirni of village Gabe Majra. The respondents have got no
right to interfere in the said exclusive possession of the
appellant.; Yet, they have threatened to dispossess the
appellant illegally and forcibly. Hence, the suit.
4. The case of the respondents Gurprit Singh
and paramjit Kaur on the other hand, in brief, is that they are
co-owners to the extent of 4/5 share, whereas the appellant is
the co-owner to the extent of 1/5th share of the joint holding
only.The respondent Gurprit Singh purchased 3/5 share of
the suit land on 5.6.1998 and he came to be in possession of
the entire suit land, as he was cultivating the shares of
Paramjit Kaur and Bhupinder Singh who ultimately
sold his 1/5th share of the suit land to the appellant.
The appellant tried to forcibly occupy a specific portion
of the land adjoining the passage shown as red in the site
plan Ex.D2/A . Whole of the land was joint and was in
joint cultivation of the co-owners. Hence, the
R.S.A.No. 971 of 2008 (O&M) {3}
co-owners who sold his 1/5th share to the appellant was not in
exclusive possession of any parcel of the joint holding.
Hence, he could not have delivered the exclusive possession
of any parcel of the joint holding. As the appellant forcibly
tried to occupy a specific portion of the joint holding, the
matter was taken to the Police. Hence, with the intervention
of the respectables and common friends, the parties resolved
the matter amicably and executed the settlement Ex. D1/A on
13.6.1999. Accordingly, the portion shown as back in Ex.
D2/A fell to the share of Paramjit Kaur, green portion fell to
the share of Gurpreet Singh and blue portion fell to the share
of the appellant. The parties occupied the suit land in the
above said manner and started cultivating their respective
parcels. Gurprit Singh respondent sowed maze and fodder
crops in the land in his possession. In violation of the
aforesaid compromise, on 11.12.7.1999, the appellant
destroyed the maze crop sown by the respondent Gurprit
Singh. Accordingly, FIR No. 100 dated 13.7.1999 was got
registered against him under Sections 44, 427 and 506 IPC.
The appellant did not desist and he again threatened to
interfere in the possession of the respondents in the land
above said. He was requested to desist from doing so. But
in vain. Hence the suit of the respondents.”
On the pleadings of the parties, trial court framed the following
issues in Civil suit No.417/17.7.1999
“(1)Whether the plaintiff is entitled to the permanent injunction
R.S.A.No. 971 of 2008 (O&M) {4}
as prayed for ? OPP
(2)Relief
Following issues sere framed by the trial court in Civil Suit No.
295/10.8.1999:-
(1)Whether the plaintiffs entitled to the permanent injunction as
prayed for? OPP
(2)Whether the suit of the plaintiffs is not maintainable in the
present form? OPD
(3)Whether the plaintiff has no locus standi to file the present
suit? OPD
(4)Relief.
After hearing learned counsel for the appellant, I am of the
opinion that the present appeal deserves to be dismissed.
Plaintiffs filed a suit for permanent injunction restraining the
defendants from interfering in their peaceful possession.
It has been held by this Court in the case Sant Ram Nagina
Ram vs. Deva Ram Nagina Ram and others AIR 1961 PB 528 as under:-
“(1) A co-owner has an interest in the whole property and also
in every parcel of it.
(2)Possession of joint property by one co-owner, is in the eye
of law, possession of all even if all but one are actually out of
possession.
(3)A mere occupation of a larger portion or even of an entire
joint property does not necessarily amount to ouster as the
possession of one is deemed to be on behalf of all.
(4)The above rule admits of an exception when there is ouster
R.S.A.No. 971 of 2008 (O&M) {5}
of a co-owner by another. But in order to negative the
presumption of joint possession on behalf of all, on the
ground of ouster, the possession of a co- owner must not
only be exclusive but also hostile to the knowledge of the
other as, when a co-owner openly asserts his own title and
denies that of the other.
(5)Passage of time does not extinguish the right of the co-
owner who has been out of possession of the joint property
except in the event of ouster or abandonment.
(6)Every co-owner has a right to use the joint property in a
husband like manner not inconsistent with similar rights of
other co-owners.
(7)Where a co-owner is in possession of separate parcels under
an arrangement consented to by the other co-owners, it is
not open to any one to disturb the arrangement without the
consent of others except by filing a suit for partition.
(8) The remedy of a co-owner not in possession, or not in
possession of a share of the joint property, is by way of a suit
for partition or for actual joint possession, but not for
ejectment. Same is the case where a co-owner sets up an
exclusive title in himself.
(9) Where a portion of the joint property is by common consent
of the co-owners reserved for a particular common purpose,
it cannot be diverted to an inconsistent user by a co-owner; if
he does so, he is liable to be ejected and the particular parcel
will be liable to be restored to its original condition. It is not
R.S.A.No. 971 of 2008 (O&M) {6}
necessary in such a case to show that special damage has
been suffered. Case law reviewed.”
Admittedly, the suit land is jointly owned and possessed by
the parties as per their share. Learned counsel for the appellants has failed to
point out from record that the appellants are in exclusive possession of the
suit property. Reliance has been placed by the learned counsel for the
appellants on the compromise alleged to have been executed between the
parties (Es. D1/A). However, the said compromise is not a memorandum of
partition and is rather a partition deed. Since the same has not been
registered, it is inadmissible in evidence. Admittedly, the alleged partition
between the parties is not reflected in the revenue record. In these
circumstances, every co-sharer has a right to enjoy the joint property and is
presumed to be in possession of every inch of the joint property. Learned
lower appellate court has, thus, rightly dismissed the suit of the plaintiffs
for permanent injunction.
No substantial question of law arises in this appeal.
Accordingly, this appeal is dismissed.
(SABINA)
JUDGE
August 17, 2009
PARAMJIT