Punjab-Haryana High Court
Rohtash vs Sheela Devi on 21 January, 2025
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2025:PHHC:008006
IN THE HIGH C OURT OF PUNJAB AND HARYANA AT CHANDIGARH
120 RSA No.2688 of 2022 (O&M)
Reserved on : 13.01.2025
Date of Decision : 21.01.2025
Rohtash ....Appellant
VERSUS
Smt. Sheela Devi ....Respondent
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Kanwar Abhay Singh, Advocate for the appellant.
ALKA SARIN, J.
CM-9333C-2022
1. For the reasons stated in the application, the same is allowed. The
delay of 163 days in re-filing the present appeal is condoned.
RSA No.2688 of 2022
2. Present appeal has been preferred by the plaintiff-appellant
challenging judgment and decree dated 29.10.2021 passed by the First
Appellate Court whereby the judgment and decree dated 19.09.2017 passed
by the Trial Court has been reversed and his suit has been dismissed.
3. The brief facts relevant to the present lis are that the plaintiff-
appellant filed a suit for permanent injunction averring in the plaint that he is
co-owner and in exclusive possession of 16 Kanals of land, fully described in
the plaint, situated in the revenue estate of village Mehchana, Tehsil
Farrukhnagar, District Gurugram. It was further averred that the plaintiff-
appellant had sown crop of mustard (sarson) on the suit property. However,
the defendant-respondent alleged that she had purchased some portion of the
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suit property and was harassing the plaintiff-appellant with malafide intention
to dispossess him. Hence, the present suit. The defendant-respondent appeared
and filed her written statement wherein various preliminary objections were
raised. It was averred in the written statement that the plaintiff-appellant had
sold more share than his actual share in the suit property and that he was
residing with his family near the road in his excess share forcibly. It was
further averred in the written statement that the plaintiff-appellant is not a co-
sharer in the suit property. All other averments made in the plaint were denied.
4. On the basis of pleadings of the parties, the following issues were
framed :
1. Whether the plaintiff is owner in exclusive
possession of the suit property ? OPP
2. Whether plaintiff is entitled to a decree for
permanent injunction as prayed for ? OPP
3. Whether the suit of the plaintiff is not maintainable
? OPD
4. Whether the plaintiff has no cause of action or locus-
standi to file the present suit ? OPD
5. Whether the plaintiff has concealed true and
material facts from the court ? OPD
6. Whether the plaintiff is estopped by his own act,
conduct and omission to file the present suit ? OPD
7. Relief.
5. The Trial Court decreed the suit vide judgment and decree dated
19.09.2017. Aggrieved by the same an appeal was preferred by the defendant-
respondent which appeal was allowed by the First Appellate Court vide
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judgment and decree dated 29.10.2021 and the suit of the plaintiff-appellant
was dismissed. Hence, the present regular second appeal by the plaintiff-
appellant.
6. Learned counsel for the plaintiff-appellant would contend that
the First Appellate Court erred in accepting the appeal of the defendant-
respondent and in dismissing the suit. It is urged that the plaintiff-appellant is
in possession of the suit property and that the defendant-respondent was
interfering in his possession. It is further the contention that the plaintiff-
appellant has constructed his house on the suit property and the injunction
ought to have been granted in his favour.
7. Heard.
8. In the present case the defendant-respondent purchased 23
Kanals 10 Marlas of land vide a registered sale deed dated 24.06.2013 (Ex.D1)
out of land measuring 48 Kanals, which includes the suit property. Subsequent
thereto the present suit was filed on 22.11.2013. The plaintiff-appellant while
stepping into the witness-box was unable to disclose as to how much land was
owned by him. It is apt to notice that the plaintiff-appellant was shown as
owner of land measuring 01 Marla out of total land measuring 960 Marlas in
the Jamabandi (Ex.P1). However, in the khasra girdawari he is shown to be in
possession of land measuring 16 Kanals. The plaintiff-appellant further in his
cross-examination stated that except for the wheat crop no other crop was
sown on the suit property whereas the categoric case of the plaintiff-appellant
was that he had sown the mustard crop (sarson) on the suit property. Even a
perusal of Ex.DX, which is a contempt petition, the plaintiff-appellant had
himself time and again asserted that the defendant-respondent was in
possession of her share since the day of its purchase.
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9. Learned counsel for the appellant has not been able to convince
this Court that he is in exclusive possession of the suit property. Further still,
as per averments of the plaintiff-appellant himself he is a co-sharer in the suit
property. A Division Bench of this Court in case of Bachan Singh vs. Swaran
Singh [2000 (3) RCR Civil 70] held as under :
"15. On a consideration of the judicial pronouncements
on the subject, we are of the opinion that :
(i) 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
of the common property unless any act of the person in
possession of the property amounts to ouster, prejudicial
or adverse to the interest of co-owner out of possession.
(ii) Mere making of construction or improvement of, in,
the common property does not amount to ouster.
(iii) 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.
(iv) 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.
In all other cases, the remedy of the co-owner out of
possession of the property is to seek partition, but not an
injunction restraining the co-owner in possession from
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doing any act in exercise of his right to every inch of it
which he is doing as a co-owner."
10. It was further held by the Hon'ble Supreme Court in the case of
T. Ramalingeswara Rao (Dead) through LRs & Anr. vs. N. Madhava Rao
& Ors. [2019 (2) RCR (Civil) 770] as under :
"17. In our view, even assuming that the plaintiffs
claimed to be in possession of the suit property (which the
two Courts below did not find in their favour) for
claiming injunction, yet they were not entitled to claim
injunction against the other co-sharers over the suit
property. It is a settled principle of law that the
possession of one co-sharer is possession of all co-
sharers, it cannot be adverse to them, unless there is a
denial of their right to their knowledge by the person in
possession, and exclusion and ouster following thereon
for the statutory period."
11. In view of the law laid down by Hon'ble Supreme Court in case
T. Ramalingeswara Rao (supra) and by the Division Bench of this Court in
case of Bachan Singh (supra), no suit for injunction would be maintainable
against co-sharers and the only remedy would be to seek partition.
12. In view of the above, I do not find any merits in the present
appeal. No question of law, much less any substantial question of law, arises
in the present case. The appeal, being devoid of any merits, is accordingly
dismissed. Pending applications, if any, also stand disposed off.
( ALKA SARIN )
21.01.2025 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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