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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, J.
Ashok Kapoor - Petitioner/Defendant.
Versus
Murtu Devi - Respondent/Plaintiff.
CMPMO No.52 of 2014
Decided on : 24.06.2015
CIVIL PROCEDURE CODE - ORDER 39 RULES 1 AND 2 - INJUNCTION - CO-OWNERS - RIGHTS AND LIABILITIES - CONSTRUCTION ON JOINT PROPERTY - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - DISCRETION OF COURT - ADVERSE POSSESSION - OUSTER.
Fact of the Case:
The petitioner, claiming exclusive possession of the suit land, sought to restrain the respondent/plaintiff from raising any sort of construction over the suit land. The respondent, a co-owner of the suit land, alleged that the petitioner was raising construction without getting the suit land partitioned and that such construction would cause substantial loss or injury to the other co-sharers.
Finding of the Court:
The court held that a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession. Mere making of construction or improvement of, in, the common property does not amount to ouster. 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. 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.
Issues: Whether the petitioner, as a co-owner, had the right to raise construction on the joint property without the consent of the other co-owner.
Ratio Decidendi: The court held that a co-owner has an interest in the whole property and also in every parcel of it. 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. 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. The court further held that a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession. Mere making of construction or improvement of, in, the common property does not amount to ouster.
Final Decision: The court dismissed the petition, holding that the petitioner was not entitled to an injunction restraining the respondent from raising construction on the suit land.
The legal principles established in the provided document clearly indicate that a co-owner of joint property does not have an absolute right to raise construction or make exclusive use of the entire property without the consent of the other co-owners. Possession of joint property by one co-owner is generally deemed to be on behalf of all, and such possession does not amount to ouster unless it is hostile, exclusive, and adverse to the interests of the other co-owners (!) (!) (!) (!) (!) (!) .
Furthermore, a co-owner cannot unilaterally alter the nature or use of the joint property in a manner that causes substantial loss or injury to others, especially when the property remains undivided and the rights of all co-owners are recognized (!) (!) (!) (!) (!) . Any act that diminishes the value or utility of the property or prejudices the rights of other co-owners can be restrained through an injunction, but only if such acts amount to ouster or are detrimental (!) (!) (!) (!) (!) .
In addition, the right to seek an injunction is subject to the demonstration of a prima facie case, potential for irreparable harm, and the balance of convenience in favor of the party seeking relief (!) (!) (!) . The courts exercise their discretion judiciously, ensuring that no undue harm is caused to any co-owner and that the principles of justice and equity are upheld (!) (!) .
Based on these principles, a co-owner's attempt to raise construction or alter the joint property without the consent of other co-owners, especially when such acts could cause substantial loss or injury, is generally not permissible. Such acts may be restrained through appropriate legal remedies, including injunctions, provided the proper legal criteria are satisfied.
Tarlok Singh Chauhan, Judge.
This petition under Article 227 of the Constitution of India is directed against the order passed by the learned District Judge, Kullu, on 21.11.2013 whereby he affirmed the order dated 22.05.2013 passed by the learned Civil Judge (Junior Division), Manali, District Kullu, and allowed the application filed under Order 39 Rule 1 and 2 CPC for grant of injunction filed by the applicant and at the same time dismissed the application preferred under Order 39 Rule 4 CPC.
2. The brief facts of the case are that the respondent-plaintiff filed a suit for declaration and injunction restraining the petitioner/defendant from raising any sort of construction over the suit land comprised in Khasra Nos. 877 and 878, Khatauni No.10 of Khata No.10, measuring 0-04-49 hect. and land measuring 0-02-85 hect. comprised in Khasra No.876 contained in Khatauni No.168 of Khata No.107, situated at Muhal Parsha Phati Shaleen Kothi, Manali, tehsil Manali, District Kullu. It was alleged that the suit land was previously owned and possessed by Dinu Ram to the extent of ½ share and S/Sh. Chetu and Dhalu, both in equal shares to the extent of ½ share. It was alleged that the petitioner was successor of Dinu and he in connivance with the revenue officials wrongly got the suit land entered in his exclusive possession. It was stated that suit land was joint and possessed by the respondent to the extent of 1/4 share but under the guise of wrong revenue entries, the petitioner without getting the suit land partitioned had started raising construction over the suit land in June, 2012, while he had no right to raise the said construction till the partition was effected because this was the most valuable portion of the suit land on the National Highway.
3. The petitioner opposed the application by filing the reply wherein it was alleged that the application was not maintainable. It was also alleged that the respondent was not joint owner in possession of the suit land and claimed exclusive possession. It was also alleged that the petitioner started raising construction in February, 2012 and had spent more than Rs.7 lacs on the construction thereof. The petitioner denied the possession of the respondent over the suit land and further claimed the revenue entries to be correct.
4. The learned trial Court after perusing the revenue records which reflected Dinu, Chetu and Dhalu to be the owners of the suit land came to the conclusion that the respondent herein was co-owner of the suit land being daughter of Dhalu.
5. Aggrieved by the order passed by the learned trial Court, the petitioner preferred an appeal before the learned District Judge, Kullu, who endorsed the findings of the learned trial Court and dismissed the appeal.
6. It is against these orders that the present petition has been filed before this Court on the ground that the orders passed by the learned Courts below are factually and legally incorrect and, therefore, not sustainable in the eyes of law. It is further contended that since the petitioner is in exclusive occupation of the land in dispute right from the year 1992 when he purchased the same from Raj Kumar and half share from Keshav Ram, then there was no question of holding the respondent to be a co-owner and granting injunction. Lastly, it is contended that the learned Courts below have granted a blank stay on the entire suit land which is in exclusive possession of the petitioner and said orders cannot go on indefinitely because no suit for partition till date has been filed by the respondent which clearly reflects on her conduct.
7. I have heard learned counsel for the parties and have gone through the records of the case. Shri Lal, learned counsel for the petitioner, has placed strong reliance on the copy of jamabandi for the year 2000-01 to contend that the petitioner is in exclusive possession of Khasra No.876 and, therefore, no injunction could have been granted by the learned Courts below.
8. I have pe
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