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2016 Supreme(HP) 2563
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, J.
Jatinder Kumar - Petitioner
Versus
Kusum Lata - Respondent
CMPMO No. 439 of 2015
Decided On : 01-04-2016
Advocate Appeared:
For the Petitioner:Mr. Nimish Gupta, Advocate.
For the Respondent:Mr.Adarsh K. Vashishta, Advocate.
Headnote:
JOINT PROPERTY - CO-OWNERS - RIGHTS AND LIABILITIES - CONSTRUCTION ON JOINT LAND - INJUNCTION - PRINCIPLES.
Fact of the Case:
Plaintiff filed a suit for prohibitory injunction restraining the defendant from raising any forcible and illegal construction over the best, valuable and excessive portion of the joint suit land till it is partitioned by meets and bounds. Along with the suit an application for injunction under Order 39 Rule 1 and 2 C.P.C. for restraining the respondents from raising any forcible or illegal construction was also filed.
Finding of the Court:
1. A co-owner has an interest in the whole property and also in every parcel of it. 2. 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. 3. 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. 4. The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of either as, when a co-owner openly asserts his own title and denies that of the other. 5. Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. 6. Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. 7. Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to dispute the arrangement without the consent of others except by filing a suit for partition.
Issues: Whether a co-sharer can be permitted to raise construction over the joint land in the absence of partition.
Ratio Decidendi: 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. 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.
Final Decision: The petition is allowed and the orders passed by the learned Courts below are set aside. The application under Order 39 Rule 1 and 2 CPC is directed to be heard afresh strictly in accordance with the parameters laid down by this Court in Ashok Kapoor’s case supra.
JUDGMENT :
Tarlok Singh Chauhan J.
This petition under Article 227 of the Constitution of India is directed against the order passed by learned Additional District Judge, Chamba, whereby affirmed the order passed by Civil Judge (Senior Division) Chamba in an application filed under Order 39 Rules 1 and 2 C.P.C.
2. Brief facts leading to filing of the instant petition are that the plaintiff/respondent filed a suit for prohibitory injunction restraining the defendant/petitioner, his agents, servants and workmen from raising any forcible and illegal construction over the best, valuable and excessive portion of the joint suit land comprised in Khatta Khatauni No. 863/967, Khasra No. 3268, 3298, 3311, 10045/3312, 3410, 3411, 3414 Kita 7 measuring 483-04 square yards, situated at Mauza Chamba Shehar-II, Pargana Panjla, Tehsil and District Chamab, H.P. till it is partitioned by meets and bounds. Along with the suit an application for injunction under Order 39 Rule 1 and 2 C.P.C. for restraining the respondents from raising any forcible or illegal construction was also filed.
3. It was alleged that the suit land was joint amongst the parties and no partition had taken place and therefore, no co-sharer was competent to raise construction or change the nature of the suit land in any manner whatsoever. But still the petitioner with a view to grab the best portion of the joint land had started raising construction of the house and he be restrained from doing so.
4. It the written statement as also reply to the application under Order 39 Rule 1 and 2 C.P.C., the petitioner alleged that the respondent/plaintiff along with her children and one Sh. Ramesh Kumar were recorded as joint tenants to the extent of 2/8 shares, however they had already covered more than their share in the entire land in the shape of using it as grave yard for burying their parents and husband of the present plaintiff. It was further alleged that the property had already been partitioned during the life time of Sh. Brij Lal. It was further alleged that the share of the plaintiff/respondent at best is 2/8th share, whereas the petitioner is the owner of ½ share of the suit land.
5. The learned trial Court allowed the application by holding that “it is well settled law that none of the co-sharers can raise construction or change the nature of the land till the same is partitioned by regular process of law or without the consent of other co-sharer.”
This observation was made after placing reliance upon the judgment of Hon’ble Punjab and Haryana High Court in Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram, AIR 1961, Punjab 528 and Praduman Singh Vs. Narain Singh, 1992 (2) SLJ 897.
6. On appeal being carried out to the learned lower Appellate Court, the order passed by learned trial Court was affirmed, that too, by again placing reliance on Sant Ram Nagina’s case supra, as also relying upon the judgment passed by this Court in Brij Lal Vs. Puran Chand, 2011 (1 Him L.R. 80 and another judgment in Roop Chand Vs. Indra AIR 1997 MP 200, to conclude that till and so long there was no proof of partition of family settlement, a co-sharer cannot be permitted to raise construction over the joint land.
I have heard the learned counsel for the parties and gone through the records of the case.
7. There appears to be a total misconception regarding the preposition of law involved in the present case. There can be no strait jacket formula to hold and conclude that in the absence of partition, a co-sharer cannot under any circumstance be permitted to raise construction over the joint land. This aspect of the matter has been considered by me in CMPMO No. 52 of 2014, titled as Ashok Kapoor Vs. Murthu Devi, decided on 24.6.2015 in the following manner:-
“9. Property held in common, by two or more persons, whatever be its nature or origin, is said to be joint property and the owners thereof joint owners. Joint property envisages a community of interest (ownership) and a commonality of possession vested in
