In a revision petition, the High Court upheld the dismissal of an injunction application. It held that a co-sharer can only restrain another if they prove exclusive possession of a portion of the joint property, which the plaintiffs failed to establish.
The revision petition stands dismissed.
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.
CR No. 103 of 2012 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR No. 103 of 2012 (O&M) Date of decision : 6.2.2012
Dharambir and others
................Petitioners vs.
Pardeep and others
.................Respondents
Coram: Hon'ble Mr. Justice K.C. Puri
Present: Sh. S.P. Tyagi, Advocate for the petitioners
K.C. Puri, J.
Challenge in this revision petition is the order dated 13.12.2011 passed by Sh. Gulab Singh, Additional District Judge, Sonepat, vide which the appeal preferred by the plaintiff, now petitioners, against the order dated 2.11.2011 passed by Sh. Rajesh Kumar Yadav, Civil Judge (Junior Division), Sonepate, was dismissed.
Briefly stated, the plaintiff- petitioners filed a suit for permanent injunction alleging that they are owners in possession of land measuring 23 kanal 7 marla and 25 kanal 8 marla as fully described in heading of the plaint. Plaintiffs have sown paddy crop in
CR No. 103 of 2012 -2-
the suit land, which is likely to be harvested to the extent of their share and the plaintiffs are in actual physical cultivating possession of the suit land from the time of their forefathers. The partition proceedings have been filed by the plaintiffs before the competent court of jurisdiction and defendants are strong headed and they want to dispossess the plaintiffs from the suit land forcibly.
The said suit was resisted by the defendants and it was pleaded that plaintiffs have not come to the Court with clean hands. Plaintiffs are neither owner nor in possession over any portion of the suit land. Father of the plaintiffs Mahender during his life time has sold land measuring 15 kanal 6 marla vide registered sale deed No. 4157 and 2636 dated 13.11.1990 and 12.7.1999 and later on Smt. Ishwanti widow of Mahender and Sonia daughter of Mahender has sold land measuring 4 kanal 14 marla vide registered sale deed 2557 dated 22.6.2007. Partition proceedings are pending.
Alongwith the suit, an application under Order 39 Rules 1 and 2 CPC was filed, which was resisted by the defendants. Learned trial Court, after hearing both the sides and going through the record, dismissed the application for injunction vide order dated 2.11.2011 passed by Sh. Rajesh Kumar Yadav, Civil Judge (Junior Division), Sonepat.
Aggrieved against the order dated 2.11.2011, the plaintiffs preferred the appeal. The said appeal was heard by Sh. Gulab Singh, Additional District Judge, Sonepat and after hearing both the sides, the appeal was dismissed vide order dated 13.12.2011.
Feeling dissatisfied with the impugned orders dated
CR No. 103 of 2012 -3-
2.11.2011 and 13.12.2011, referred to above, the plaintiff-petitioners have preferred the present revision petition.
During the pendency of the present petition, CM No. 3018 CII of 2012, has been filed for placing on record Annexures P-10 and P-11. The application stands allowed and documents Annexures P-10 and P-11 are taken on record subject to all just exceptions.
Learned counsel for the petitioners has submitted that plaintiff-petitioners are co-sharer in the suit property and their share is required to be preserved in view of authority reported as Shri Kishan vs. Dharampal and others 2005(1) Latest Judicial Reports 610 . It is submitted that both the Courts below have not appreciated this aspect of the case.
I have carefully considered the said submission made by counsel for the petitioners and have gone through the file of the case. Both the Courts below have given a concurrent finding that plaintiffs can get injunction only if they are able to prove their exclusive possession over any of the portion of the joint khata. It is further held by both the Courts below that revenue record does not support the exclusive possession of the plaintiffs over any portion of the suit land. So, in these circumstances, both the Courts below have rightly dismissed the application for injunction.
So far as authority in Shri Kishan's case (Supra), is concerned, in that case also, reliance on Division Bench authority reported as Bachan Singh vs. Swaran Singh 2000 (2) Latest Judicial Reports 806, has been made. The principles for grant of injunction in respect of co-sharer have been enunciated in the said
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ruling. From the perusal of the said judgment also, it is revealed that a co-sharer can get injunction against other co-sharer only in case he is in exclusive possession of any portion of the joint khata. Both the Courts below have given a concurrent finding that plaintiffs have failed to prove their exclusive possession. Even in the revenue record, now produced, joint possession has been shown and plaintiffs have not been shown in exclusive possession of the land.
So, in these circumstances, the revision petition is without any merit and the same stands dismissed.
6.2.2012 chugh
( K.C. Puri ) Judge
2 issues framed by the court
Whether a co-sharer can obtain an injunction against another co-sharer who denies their possession.
Whether the plaintiffs proved exclusive possession over any portion of the joint khata for an injunction.
Colour shows how this judgement treated each authority
Shri Kishan vs. Dharampal and othersReferred¶22
Shri Kishan vs. Dharampal and others 2005(1) Latest Judicial Reports 610
Bachan Singh vs. Swaran SinghApplied¶24
Bachan Singh vs. Swaran Singh 2000 (2) Latest Judicial Reports 806
Dharambir and others
Pardeep and others
K.C. Puri
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
