The High Court of Punjab and Haryana dismissed an appeal against an order allowing a lower appellate court decree that rejected a suit for injunction and mandatory injunction. The court held that no injunction can be granted in favor of a co-owner against another when no partition has occurred and no exclusive possession exists.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No. 3422 of 2008
1
In the High Court for the States of Punjab and Haryana at Chandigarh
RSA No. 3422 of 2008
Date of decision: May 7, 2009
Gurcharan Singh son of Amar Singh
..Appellant.
Versus
Harjinder Singh and others ..Respondents
Coram: Hon'ble Mr.Justice Rakesh Kumar Garg
Present: Mr. Harsh Bunger, Advocate for the appellant. Mr. G.S. Nagra, Advocate for the respondent No.1.
Rakesh Kumar Garg,J.
The appellant filed a suit for permanent injunction restraining the defendants from creating any charge on any specific Khasra Number of the suit land and further from dispossessing the plaintiff to the extent of his share over the suit land illegally and except in due course of law and for mandatory injunction directing the defendant to remove the boundary wall marked ‘ABC’ as shown red in the site plan attached with the suit and further to hand over the possession thereof to the plaintiff.
As per the facts of the suit, plaintiff along with Amar Singh defendant No.1 was the co-owner of the land in dispute. Father of the plaintiff had purchased 1 Kanal 4 marlas of land from Sohan Singh and Karamjit Singh vide sale deed dated 4.10.1973 with possession. Father of the plaintiff died on 7.7.1982 and thereafter, plaintiff and his brothers inherited the estate and they were owner in possession of the land bearing Khasra No.119. Plaintiff had also purchased land measuring 12 marlas of land from Dhan Kaur with possession vide registered sale deed dated 24.10.1978. The land had not been partitioned amongst all the co-sharers and co-owners. An application for partition of the land by other co-owners was filed. A.C. IInd Grade Jalandhar vide order dated 3.3.2000 adjourned the partition proceedings sine die. He came to know that
RSA No. 3422 of 2008 2
defendant No.1 was negotiating with defendant Nos.2 to 4 for alienating specific portion of land illegally and forcibly without partition. It was further averred that during the pendency of the suit, defendants constructed a wall ABC shown in the site plan illegally. The defendants have threatened to dispossess the plaintiffs from the suit land. Hence this suit.
The suit was contested by the defendant Nos.1 to 3 only . In their written statement, it was submitted that defendant No.1 purchased 5/16 share measuring 15 marlas from Khasra No.119 from Hazara Singh with possession. Defendant No.1 sold the said land to defendant No.2 vide agreement dated 12.7.2000 with possession. It was further submitted that plaintiff and defendants were co-sharers in the suit land. It was denied that father of the plaintiff purchased 1 Kanal 4 Marlas of land from Khasra no.119 with possession. Amar Singh had already raised boundary wall and constructed room in his share. Pritam Kaur was also in possession of the suit land. Dismissal of the suit was prayed for.
After appreciating the oral and documentary evidence of the parties, the trial Court partly decreed the suit of the plaintiff as under:-
“ It is hereby ordered that the suit of the plaintiff partly succeeds and I, therefore,, pass a decree with costs in favour of the plaintiff and against the defendants, for permanently restraining the defendants from disposing off any specific khasra number or any specific area out of suit property till partition of the same. The suit of the plaintiff is also decreed with costs for the relief of mandatory injunction, in so far as defendants are directed to remove the boundary wall 'ABC' as shown red in colour in the site plan and to restore the suit property to its previous position as sit existed at the time of filing of the present suit.”
Dis-satisfied from the aforesaid decree, defendant Harjinder Singh preferred an appeal which was allowed. While allowing this appeal, the lower Appellate Court held that the suit land was still joint and none of the co-sharer
RSA No. 3422 of 2008 3
was in exclusive possession of any portion of the suit land and therefore, plaintiff was not entitled to the relief of injunction. The lower Appellate Court further held that the plaintiff was not found to be in possession of over 36 marlas of land out of Khasra No.119 and when he had failed to prove the construction of the wall by the defendants and the suit of the plaintiff was not maintainable in the present form.
Still feeling aggrieved, the plaintiff has filed the present appeal against the judgment and decree of the lower Appellate Court.
I have heard learned counsel for the parties and perused the record. Undisputedly, the parties are co-sharers in the suit land and no partition has taken place so far. The lower Appellate Court on appreciation of evidence recorded a finding of fact that none of the parties in the present litigation was in exclusive possession of the suit land. It is well settled proposition of law that no injunction whatsoever type can be granted against the co-sharer and co-owner of the joint land especially and particularly when none of the co-sharer is in exclusive possession. Reliance is placed on a Full Bench judgment of this Court cited as 1981 PLJ 204.
Learned counsel for the plaintiff-appellant was unable to show any perversity in the finding of fact recorded by both the courts below.
Thus I find no merit in this appeal.
No substantial question of law arises.
Dismissed.
May 7, 2009 (RAKESH KUMAR GARG) nk JUDGE
3 issues framed by the court
Whether an injunction can be granted against a co-sharer in joint land when no party is in exclusive possession and the land has not been partitioned.
Whether the lower appellate court's finding that the plaintiff was not in exclusive possession of the suit land was perverse.
Whether the appeal against the decree dismissing the suit is maintainable in light of settled legal principles regarding co-sharers.
Colour shows how this judgement treated each authority
1981 PLJ 204Relied on¶24
Gurcharan Singh
Harjinder Singh
Rakesh Kumar Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
