Karam Singh And Ors. vs Nathu Singh
1994 Latest Caselaw 522 Del

JUDGMENT

Jaspal Singh, J.

(1) In his suit for partition the plaintiff Nathu Singh also applied for an ad-interim injunction order. Though the learned Additional District Judged allowed it only partly, the defendants still found the order unpalatable. Hence this appeal.

(2) Before I proceed to deal with the arguments advanced, let me first provide" a thumb-nail description.of the facts.

(3) The plaintiff claiming to be the co-sharer Along with the defendants of property bearing Khasra No. 837 measuring 7 biswas (350 Sq. yards) in the revenue estate of Village Munirka filed a suit for partition and claiming that defendants 1 to 3 having already raised some construction were out to raise further constructions and to part with the same to the detriment of plaintiff's interest, sought ad-interim injunction restraining them from doing so. It need hardly be mentioned that the defendants contested the suit and so also the application under Order 39 Rules 1 & 2. They alleged that the plaintiff's rights in the land stood relinquished and that they were in exclusive possession of the suit property as sole owners. Defendants 1 to 3 further took the plea that, in any case, they had become exclusive owners on account of ouster and by way of adverse possession and that constructions were raised as per the plans sanctioned by the Municipal Corporation.

(4) It appears that the learned Additional District Judge appointed a Local Commissioner who, on' inspection of the site, reported the existence of two shops Along with a tinshed and the construction of a few more. Anyhow, it was admitted case of the parties before the learned trial judge that shops numbered by him as 1,2 and 3 (shown yellow in the site plan) had got roofs while three shops (Marked X, adjacent thereto were under construction.

(5) The over-all survey of the material led the learned Additional District Judge to hold that prima facie the plaintiff was a co-owner of the suit property and that the defendants had no right to raise constructions and to change user of the property. He felt that raising of further construction was likely to cause irreparable loss to the. plaintiff but allowed the defendants to complete the construction of shops marked by him as X Yz with the following observations : "UNDER the facts and circumstances of the present case, I, therefore, allow the defendants to complete the shops XYZ. Under the facts and circumstances of the present case, I, therefore, allow the defendants to complete the shops Xy & Z provided the defendants place on record the names of all the tenants in respect of these shops as well as the shops shown in yellow colour, the rent being realised from each of the transferees in case the shops are transferred and to maintain and submit periodical accounts in respect of these 8 shops and one godown. The defendants No.1 to 8 shall not construct either on the first floor of these shops marked as 1 to 3 and Xyz or on the shops shown in yellow colour nor shall raise further construction anywhere in the suit land till the disposal of the suit. It is also directed that in case the suit is ultimately decreed and at the time of final decree, the portion of the shops marked Xyz in the site plan placed on record, falls to the share of the plaintiff, the construction of these shops shall not be taken into account for the purpose of partition of the suit land. With these directions the application stands disposed of."

(6) Mr. V.P .Singh, Advocate who put in appearance on behalf of the appellants had three submissions to make in support of the appeal. His first contention was that the respondent having relinquished his rights in the suit property, he could not claim to be a co-sharer. Secondly, in any case, the appellants had, on account of ouster of the respondent, become owners by adverse possession and thirdly the respondent, even if taken to be a co-sharer, would not be prejudiced in any way by the proposed construction as the appellants were prepared to give an undertaking not to part with the same or to create third party interest and as they were further prepared to give an undertaking to demolish the construction at their own expense,' if so directed by the court. It was submitted that the respondent had even accepted such a proposal during the proceedings of the appeal.

(7) The respondent has denied any relinquishment. He has also denied the factum of any statement/application of relinquishment having been made before the Land Acquisition Collector or his having been ousted.

(8) What is important to note is that the appellants do admit that the respondent was a co-sharer. Even otherwise the Jamabandi of 1950-51 establishes it to be so. Their claim is that the respondent had relinquished his rights before the Land Acquisition Collector. The respondent, however, denies there being any application or statement to that effect. This being the position, the matter needs evidence to be recoded and measured. For the present, and more so in view of the categorical denial of the respondent, his rights as a co-sharer cannot be taken, at least at this stage, to have been relinquished.

(9) As regards the plea of ouster, we need to remember that as between co sharers, possession of one co-sharer is in law the possession of all co-sharers. Therefore, to constitute adverse possession, ouster of the non-possessing co sharer has to be made out. There must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other (See P. Lakshmi Reddy Vs. L. Lakshmi Reddy, Mohammad Bagar Vs. Naimun-Nisa Bibi, , & Shambhu Prasad Vs. Mst. Phool Kumari, ).

(10) In the case of co-owners, the test of ouster is more exacting than in the case of strangers. The reason is that in the case of co-owners the possession of one is held to be for the benefit of all. In Prescott Vs. Novero (1827) 4 Masen 326, it was said that: "THE only difference between the possession of a co-owner and other cases is that, acts which, if done by a stranger would per se be a disseisin, are in the case of tenancies in common perceptible of explanation consistently with the real title, acts of ownership are not, in tenancies in common, acts of disseisin."

(11) As observed by the Privy Council in Hardit Singh Vs. Gurmukh Singh (AIR 1918 Pc 1) the phrase "exclusive possession" has an equivocal meaning. If by exclusive possession of joint estate is meant that one member of the joint family alone occupies it, that by itself affords no evidence of exclusion of other interested members of the family. Uninterrupted sole possession of such property, without more must be referred to the lawful title possessed by the joint holder to use the joint estate, and cannot be regarded as an assertion of a right to hold it as separate, so as to assert an adverse claim against other interested members. (See also Lachneswar Singh Vs. Monowar Hossain 2nd 19 Cal. 253 (P.C.) and Cor Vs. Appurhamy {1911) A.C. 230.

(12) The law being as discussed above, the mere fact that the appellants have been in exclusive enjoyment of the suit property cannot per se amount to ouster of respondent's proprietory rights as a co-sharer (.See also : Midnapur Co. Vs. Naresh Narain Air 1924 Privy Council 144).

(13) It was held in the case of Najjukhan Vs. Imtiaz-ud-Din (1895) 2nd 18 All. 115 which was based upon a decision of a Full Bench in the case of Shadi Vs. Anup Singh (1890) 2nd 12 All 436, that one of several joint owners of land is not entitled to erect a building upon the joint property without the consent of the other joint owners, notwithstanding that the erection of such building may cause no direct loss to the other joint owners.

(14) During arguments Mr.V.P.Singh did not refer to any precedent while Dr. Sidhu who argued on behalf of the respondent placed reliance only on a judgment of Kerala High Court in I. Gouri Vs. C.H. lbrahim and more particularly to that portion of paragraph 5 of the judgment which reproduces the following from Woodroffe's Law of Injunction (1964) : "(1)The Courts will, in all cases be cautious of interference with the possession and enjoyment of joint property. (2) If one co-sharer uses the joint property to the greater profits of himself, but without damage to the co-sharers, there is no cause of action. (3) In as much as each co-sharer is entitled to a portion of every part of the joint property, the Court will not, as a general rule, enforce merely strict rights and will not interpose where the user is slightly in excess of the right. (4) Where there is an infringement of a character which is sufficiently substantial to entitle to some relief, the Courts will, in the determination of the question whether an injunction should be granted, have to consider whether the injury is adequately remediable by damages and partition. If that be the case, an injunction will be refused. (5) In the particular case of alleged injury through cultivation in the ordinary course by a co-sharer in actual occupation and sole use of the property, damages and not an injunction will ordinarily be granted even though the cultivation has the effect of excluding a co-sharer, unless such exclusion is in denial of that co-sharer's title, in which case an injunction will be granted, such a rule being necessitated by the climate, soil and other peculiar circumstances of this country in which the lands are ordinarily cultivated in common. (6) In all other cases, an injunction may be granted where act complained of involves the exclusion of the co-sharer, or some other material and substantial injury not remediable by partition or damages, such as the material and injurious alteration of the nature and condition of the property to which the parties are jointly entitled."

(15) The law is thus clear and when we examine the impugned order in its light we find that the learned trial judge has treaded a path no different from the one paved by it.

(16) A few words.more before lowering the curtain. It was contended that during the proceedings of this appeal the respondent had agreed to the raising of further construction by the appellants and in support my attention was drawn to C.M. 1535 of 1991 and to the reply filed by the respondent in answer to it. Of course, the reading of the two does lead to an impression that the respondent had agreed to the raising of some further construction by the appellants, but it was explained by Dr.Sidhu that the appellants had misrepresented about the nature and extent of the construction sought to be raised and soon upon Realizing it, the respondent had refused to be misled and it was on account of this that the court had also refused to modify its order of May 31, 1991 which is in following terms : "COUNSEL for the respondent seeks further time to file reply to the application. Let the reply be filed within a week. Rejoinder, if any, be filed before the next date of hearing. Parties agree that in the meantime further construction of shops identified by the Trial Court as No.s 1, 2, 3 and X, Y, Z may go on, but the petitioner will not part with possession of the newly constructed portion of these shops or otherwise alienate or encumber this portion in any -way till the next date of hearing. To come up on 8th August, 1991."

(17) The order of November 25, 1993 by which the Court refused to modify its order of May 31, 1991 may also be profitably reproduced. It is as follows : "BY this application, the appellants seek modification of the order made on 31st May 1991 to the effect that they be permitted to carry out further construction in the premises in question. I have heard learned counsel for the parties and I am of the view that keeping in view the facts and circumstances of the case and the controversy involved, it would neither be proper nor expedient to make any further orders in this application. It would, however, be desirable that the main appeal is set down for final disposal. Ordered accordingly."

(18) As the court refused to modify its order of May 31, 1991 and as it is claimed by the respondent that true facts had not been represented but rather suppressed, I do not think much can be allowed to be made out of the so-called agreement.

(19) The responden't having prima facie established himself to be a co-owner and the pleas of ouster and adverse possession having not been established prima facie, the impugned order cannot be faulted more so when the respondent had approached the court without much loss of time. A co-owner has not in law any right to appropriate land to himself out of a joint land against the consent of his co-owner. As observed in Prabhoo Vs. Soodh Nath : "Highhanded action by one co-owner cannot be encouraged by courts of law." Of course, each case is to be decided upon its own peculiar facts and it will be left to the court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies. As laid down by the Full Bench of the Allahabad High Court in Chhedi Lal Vs. Chhotey Lal , the court in the exercise of its discretion has to be guided by considerations of justice, equity and good conscience and that no inflexible rule can be laid down as to the circumstances in which the relief for injunction should be granted or refused. However, I do feel that in the case in hand, the impugned order, having taken care of all the facts and circumstances of the case and the principles governing the law of injunctions, suffers from no such infirmity as may call for interference. The order thus stands subject, however, to modification regarding construction, if any, brought about by the order of this court dated May 31, 1991. The appeal stands disposed of accordingly.

(20) Nothing said in this order shall be read as an expression of opinion on the merits of the case. No order as to costs.