Back
2015 Supreme(HP) 1446
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, J.
Dhani Ram - Appellant
Versus
Chet Ram and another - Respondents
RSA No. 645/2005
Decided On : 4.12.2015
Advocate Appeared:
For the Appellant :Mr. Karan Singh Kanwar, Advocate.
The main legal point established in the judgment is that a co-owner out of possession 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 certain conditions are met. The remedy for the co-owner out of possession is to seek partition, not an injunction restraining the co-owner in possession from exercising their rights as a co-owner.
Headnote:
Joint Ownership - Property Dispute - AIR 2001 Punjab & Haryana 112 - The court discussed the law on the inter-se interests of the co-owners and held that 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. Mere making of construction or improvement 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 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. 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.
Fact of the Case:
The plaintiff filed a suit against the defendants for injunction and mandatory injunction claiming exclusive ownership of the land. The defendants claimed to be co-owners of the suit property and argued that no fresh construction was raised during the pendency of the suit.
Finding of the Court:
The court found that the plaintiff did not approach the Court with clean hands as per the revenue record, and the suit land was shown to be joint. The court held that the plaintiff is out of possession of the suit land and the remedy open to the plaintiff was to seek partition and not to file a suit for injunction restraining co-owners in possession from doing any act in exercise of their rights to raise the construction.
Issues: The issues revolved around the ownership and possession of the suit land, the right to raise construction on joint property, and whether the plaintiff approached the Court with clean hands.
Ratio Decidendi: The court held that 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. The court also emphasized that 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 as a co-owner.
Final Decision: The appeal was dismissed as there was no merit in the present appeal.
Rajiv Sharma, J.
This Regular Second Appeal has been instituted against judgment dated 1.10.2005 rendered by learned District Judge, Sirmaur District at Nahan, HP in Civil Appeal No. 06-CA/13 of 2005.
2. “Key facts" necessary for adjudication of the present appeal are that the appellant-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) filed a suit against the respondents-defendants (hereinafter referred to as 'defendants' for convenience sake) for injunction and mandatory injunction. According to the plaintiff he was exclusive owner-in-possession of the land as detailed in the plaint. Defendants have started causing interference in the suit land by way of digging for construction without any right, title or interest.
3. Suit was contested by the defendants. Case of the defendant is that they are co-owners of the suit property and shed was built on the suit land long back and no fresh construction was raised during the pendency of the suit.
4. Issues were framed by the learned trial Court on 11.8.2004. Learned Civil Judge (Senior Division) decreed the suit on 3.1.2005. Defendants filed appeal before the District Judge. Appeal was allowed on 1.10.2005. Hence, this appeal.
5. The Regular Second Appeal was admitted on 20.4.2006 on the following substantial questions of law:
“1. Whether the first appellate Court could not have held that the plaintiff-appellant did not approach the Court with clean hands when in Para-1 of the plaint it was claimed that he was owner in possession, as per entries in the Jamabandi, and in the Jamabandi, it is recorded that the plaintiff and defendant No. 1 are the joint owners?
2. Whether the first appellate Court has erred in returning the finding that a joint owner can raise construction on joint property without getting his share separated?”
6. Mr. Karan Singh Kanwar, Advocate, on the basis of substantial questions of law framed, has vehemently argued that the findings given by the first appellate Court below that the plaintiff has not approached the Court with clean hands are contrary to the revenue record. According to him, defendant could not raise construction on the suit land.
7. I have heard the learned counsel for the appellant and also gone through the record carefully.
8. Suresh Kumar has appeared as PW-1. He has proved the General Power of Attorney of the plaintiff. He has proved copy of GPA Ext. PW2/A. He testified that his father is owner-in-possession of the suit land. Defendants were also owners of the suit land. Possession was with the plaintiff. Defendants started digging up the suit land in January 2004. Interim order was obtained on 28.2.2004 and despite that defendants did not stop raising construction. They raised temporary shed. He has proved the photographs mark A and B. In his cross-examination, he has categorically admitted that the defendants were also co-sharers of the suit land. Suit land was vacant on the spot. It is a plain piece of land. He has never got demarcation of the suit land.
9. PW-2 Pankaj Sood has proved Photographs Ext. PW-2/A and Ext. PW-2/B. He has proved negatives of the photographs, Ext. PW-2/C and Ext. PW-2/D.
10. Defendant No. 2 has appeared as DW-1. He deposed that the plaintiff and his father resided together. His father has share in the suit land. Cow-shed was demolished and new cowshed was constructed in 2002. They have not raised any construction after filing of the suit.
11. It is thus, evident from the discussion of the evidence herein above that PW-1 has categorically admitted in his examination-in-chief and also in cross-examination that the defendants are co-sharers in the suit land. Even as per Khasra girdawari, Ext. P1 and Jamabandi for the year 2002-03, Ext. PW-1/A, plaintiff alongwith defendants and other is shown as co-sharer and reflected to be co- sharer on the suit land. Thus, as per revenue record, suit land is shown to be joint. Presumption of truth is attached to revenue record and no evidence has been led by the
