Point of Law: Civil Law - Grant of Temporary Injunction - Rights and Liabilities of Co-owners - A co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in common property absolutely and simply because he is a co-owner unless any act of person in possession of property amounts to ouster prejudicial or adverse to interest of co-owner out of possession.

ORDER :

An application moved by the plaintiff under Order 39 Rule 1 and 2 of the Code of Civil Procedure (CPC), seeking temporary injunction against the defendants, has been concurrently allowed by the learned Courts below. Feeling aggrieved, the defendants have assailed these orders by means of the present petition filed under Article 227 of the Constitution of India. The parties are hereinafter referred to as they were before the learned Trial Court.

2. Facts:- 2(i). Plaintiff filed a civil suit under Section 38 of the Specific Relief Act for permanent prohibitory and perpetual injunction to restrain the defendants from causing any interference, damage, cutting and changing the nature of the suit land etc. The case as set up in the plaint was that the plaintiff, defendants and others are co-owners in possession of the suit land comprised in Khata/Khatauni Nos.16/32, 33, 34, 35, 36, 37, 38, 39 and 40, bearing Khasra Nos.213/202/5 Min, 212/202/5 Min, Kitas 16 measuring 176-09 bighas, situated at Village Shadyal, Tehsil Kandaghat, District Solan. In support of the averments, Jamabandi for the year 2009-10 was appended. The projected grievance of the plaintiff was that the defendants were raising construction over the suit land with an intention to grab its best portion adjoining to village Shadyal-Basha road. It was further averred that by raising the construction, the defendants were trying to possess more land on the spot than their share. Alongwith the civil suit, an application under Order 39 Rule 1 and 2 read with Section 151 CPC for grant of temporary injunction was also moved.

2(ii). In the written statement, stand of the defendants was that:-

2(ii)(a). Partition/Family arrangement had taken place amongst the ancestors of the shareholders of the suit land. Subsequent thereto, all the shareholders are in separate possession of different khataunis. Their such separate possession has been recorded in the jamabandi.

2(ii)(b). Area comprised in Khatauni Nos.37, 38 and 39 is in possession of the defendants and others, whereas area comprised in Khatauni No.40 is in possession of the plaintiff and others. The revenue record evidences this fact. Defendants intended to raise construction only over 6 biswas of land falling under Khatauni Nos.37, 38 and 39, out of suit land total measuring 176-09 Bighas. 2(ii)(c). The possession of co-sharers over separate parcel of lands under different khataunis has remained un-objected and uninterrupted. The land entered in different khataunis in possession of different co-owners to the exclusion of others has been accepted by all the joint owners. Therefore, the plaintiff is estopped from filing the suit to restrain the defendants from raising construction over the land in their possession.

2(ii)(d). It is not only the defendants, who were raising construction over the land comprised in Khatauni Nos.37-39, i.e. parts of suit land, but various other co-owners, viz. daughters of Smt. Kalavati and Smt. Taravati, were also constructing houses over the suit land at a distance of around 30 feet from the land where the defendants were digging the pits. The plaintiff had not objected to raising of construction over the suit land by these two co-owners. But by means of instant suit, he was opposing the construction over the suit land by the defendants. Raising of construction over the suit land by other co-owners was concealed in the plaint.

2(ii)(e). The plaintiff had himself raised construction over best portion of the suit land adjacent to National Highway No.22, i.e. Shimla-Parwanoo road. He had raised a three storied structure, out of which one floor was commercial and was fetching him monthly rent of Rs.40,000/-.

2(iii). In replication, the plaintiff did not dispute the fact that he had constructed a three storied house over parts of suit land (Khatauni No.40) adjoining to the national highway. The plaintiff did not deny that other co-owners named in the written statement had also been raising construction