Punjab-Haryana High Court
Mukhtiar Singh & Ors vs Gulab Singh on 6 March, 2025
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2025:PHHC:032209
107
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-579-2018 (O&M)
Date of Decision : 06.03.2025
Mukhtiar Singh & Ors ... Appellant(s)
Versus
Gulab Singh ... Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Nakul Sharma, Advocate for the appellants.
ALKA SARIN, J. (Oral)
1. The present appeal has been preferred by the plaintiff-
appellants challenging the judgment and decree dated 21.05.2012 passed by
the Trial Court and the judgment and decree dated 16.08.2014 passed by the
First Appellate Court. The present appeal has been filed alongwith an
application (CM-1416-C-2018) for condonation of delay of 725 days.
2. Brief facts relevant to the present lis are that the plaintiff-
appellants set up a case that Khushal Singh through his attorney Gurmukh
Singh had sold land measuring 5 kanals 0 marla i.e. 2 marlas being 2/3622
share of land measuring 181 kanals 2 marlas of Khewat No.378 plus 1 kanal
5 marlas being 25/731 share of land measuring 36 kanals 11 marlas of
Khewat No.380 plus 1 kanal 9 marlas being 29/805 share of land measuring
40 kanals 5 marlas comprised of Khewat No.381 plus 2 kanals 4 marlas
being 44/1229 share of land measuring 61 kanals 9 marlas of Khewat
No.382 of village Hazara Singh Wala, Tehsil and District Ferozepur to the
1 of 5
Neutral Citation No:=2025:PHHC:032209
RSA-579-2018 (O&M) -2-
plaintiff-appellants vide a registered sale deed dated 23.10.2006 and the
possession was also alleged to have been delivered. It was further the case
that the plaintiff-appellants are actually in physical possession of the suit
property since they purchased it and the defendant-respondent had no right
or concern with the suit land.
3. Notice was issued to the defendant-respondent who filed his
written statement raising the objection that the defendant-respondent is a
co-sharer in the joint khewat and, therefore, the suit for permanent injunction
was not maintainable against him. The other averments in the plaint were
also denied.
4. Replication was filed. On the basis of the pleadings of the
parties, the following issues were framed :
1. Whether the plaintiffs are in possession of suit land
as alleged ? OPP
2. Whether the plaintiffs are entitled to permanent
injunction as prayed for ? OPP
3. Whether the plaintiffs have not come to the Court
with clean hands ? OPD
4. Relief.
5. The Trial Cout vide judgment and decree dated 21.05.2012
dismissed the suit holding that no suit for injunction was maintainable
against a co-sharer. Aggrieved by the same, an appeal was preferred which
appeal was also dismissed by the First Appellate Court vide judgment and
decree dated 16.08.2014. Hence, the present Regular Second Appeal.
2 of 5
Neutral Citation No:=2025:PHHC:032209
RSA-579-2018 (O&M) -3-
6. Learned counsel for the plaintiff-appellants has vehemently
contended that the plaintiff-appellants had purchased specific khasra
numbers of the suit property and were in possession and further that the
vendor of the defendant-respondent had sold more than his share in favour
of the defendant-respondent.
7. I have heard the learned counsel for the plaintiff-appellants.
8. In the present case both the Courts concurrently held that the
defendant-respondent was a co-sharer in the suit property. The argument of
the learned counsel for the appellants that since specific khasra numbers had
been purchased, hence, the suit for permanent injunction would be
maintainable against a co-sharer deserves to be rejected in view of the law
laid down by a Full Bench of this Court in the case of Bhartu vs. Ram
Sarup [1981 PLJ 204]. In Bhartu's case (supra) the Full Bench noted the
earlier decision by a Division Bench in the case of Sant Ram Nagina Ram
vs. Daya Ram Nagina Ram [AIR 1961 Pb. 528] wherein the following
propositions were settled :
"(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 of a co-owner by another. But in order to
3 of 5
Neutral Citation No:=2025:PHHC:032209
RSA-579-2018 (O&M) -4-
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 by the other
co-owners, it is not open to any body to disturb the
arrangement without the consent of others except by
filing a suit for partition."
9. A Division Bench of this Court in the case of Bachan Singh
V/s Swaran Singh [2000(3) RCR (Civil) 70] has 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
4 of 5
Neutral Citation No:=2025:PHHC:032209
RSA-579-2018 (O&M) -5-
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
doing any act in exercise of his right to every inch of it
which he is doing as a co-owner."
10. Learned counsel for the appellants has candidly admittedly that
till date there is no partition which has been effected between the parties.
11. In view of the above and keeping in view the law laid down by
this Court in the cases of Bhartu (supra) and Bachan Singh (supra), no fault
can be found with the judgments and decrees passed by both the Courts. No
question of law, much less any substantial question of law, arises in the
present case. Even on the grounds of delay, there is a delay of 725 days in
filing the appeal for which no cogent reason is forthcoming. The present
appeal being devoid of any merit as well as being barred by limitation is
dismissed. Pending applications, if any, also stand disposed off.
06.03.2025 ( ALKA SARIN )
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
5 of 5
