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PUNJAB & HARYANA HIGH COURT
V.K.Jhanji, J.
R.C.Sood Co.
Versus
R.Kant And Company
C.R. No. 1627 of 1995,
Decided On : SEPTEMBER 14, 1995
INJUNCTION - CO-SHARER IN POSSESSION - CONSTRUCTION - PARTITION - IRREPARABLE LOSS - BALANCE OF CONVENIENCE - HARYANA DEVELOPMENT AND REGULATION OF URBAN AREAS ACT, 1975 - SECTION 3.
Fact of the Case:
Plaintiff, a co-sharer in an undivided land, filed a suit seeking an injunction to restrain the defendants, who were also co-sharers in possession of a portion of the land, from raising construction and selling plots before the land was partitioned. The plaintiff claimed that the defendants had no right to change the nature and character of the land or raise any construction before partition. The defendants contended that they were in actual physical possession of the land, had obtained exemption from the State of Haryana for the establishment of a film studio and Allied Complex, and had spent a substantial amount on the development of the land.
Finding of the Court:
The court held that the plaintiff was not entitled to an injunction. The court found that the defendants were in actual physical possession of the land, had obtained exemption from the State of Haryana for the establishment of a film studio and Allied Complex, and had spent a substantial amount on the development of the land. The court also found that the plaintiff had delayed in filing the suit and that the balance of convenience was in favor of the defendants.
Issues: 1. Whether a co-sharer in possession of a portion of an undivided land can be restrained from raising construction before partition? 2. Whether the defendants had obtained the necessary exemption from the State of Haryana for the establishment of a film studio and Allied Complex? 3. Whether the plaintiff had delayed in filing the suit? 4. Whether the balance of convenience was in favor of the defendants?
Ratio Decidendi: 1. A co-sharer in established possession of any portion of an undivided holding, not exceeding his own share, cannot be disturbed in his possession until partition. 2. A co-sharer who is in possession of such portion of a joint holding can transfer that portion subject to adjustment of the rights of the other co-sharers therein at the time of partition. 3. The court will consider the following factors in determining whether to grant an injunction: (i) prima facie case, (ii) balance of convenience, and (iii) irreparable injury. 4. In the present case, the plaintiff failed to establish a prima facie case, the balance of convenience was in favor of the defendants, and the plaintiff would not suffer irreparable injury if the injunction was not granted.
Final Decision: The court dismissed the plaintiff's revision petition.
V.K.Jhanji, J.
1. This is plaintiffs revision petition directed against the orders of the Courts below dismissing the application of the plaintiff for grant of ad-interim injunction.
2. The right-holders of village Anangpur own undivided land measuring 4583 acres. The plaintiff as well as defendant companies who are builders and colonisers are engaged in the business of land development. Plaintiff company (hereinafter referred to as plaintiff) owns 230 acres out of the undivided-share which it is alleged to have purchased during the year 1982. Defendants R. Kant and Company (hereinafter referred to as defendants) own 430 acres which they purchased between the year 1975 to 1977. Defendants are in exclusive possession of Khasra Nos. 9 to 16 whereas the plaintiff is not in possession of any parcel of land. Suit of the plaintiff is for restraining the defendants from raising construction and sell plots before the land is partitioned by metes and bounds. Suit has been filed on the allegations that the land in village Anangpur is adjacent to the Union Territory of Delhi and in close proximity of Suraj Kund resort, Rajhans Hotel and other residential colonies like Charmwood village, Eros Garden, Green Field colonies and Deluxe Hotel Oasis and the defendants who claim to be in possession of khasra Nos. 9 to 16 being co-sharers have no right to sell, transfer or raise construction over the joint land. Along with the suit, plaintiff filed an application for ad-interim injunction for restraining the defendants from raising any construction, carrying out any development activity by laying roads, water lines, sewerage lines etc. or selling specific plots and from doing any other acts detrimental to the common and joint use of the suit land. Defendants have contested the suit and also the application for ad-interim injunction inter-alia on the grounds that; the defendants are in actual physical possession of the land comprised in khasra Nos. 9 to i6; the defendants have obtained exemption from the State of Haryana for the establishment of a film studio and Allied Complex and are required to complete the development work within a period of five years, i.e. by July, 1995; the defendants have furnished a bank guarantee to the tune of Rs. 2.5 crores in favour of State Government and have already spent nearly Rs. 3 crores on the development and for purchase of machinery in the implementation of project by laying of roads etc.; more than 450 people have already booked their plots; and the present suit and the application have been filed to stall the development work of the project in question. Defendants have also averred that previously too, certain persons claiming to be co-sharers had unsuccessfully tried to dispossess the defendants and that matter came to be decided in favour of the defendants. The trial Court on the basis of pleadings and the material brought on record dismissed the application and the appeal against the said order has been dismissed by the first appellate Court.
3. Mr. M.L. Sarin, Sr. Advocate, counsel for the plaintiff has contended that the Courts below have erred in law in holding that the finding given in the previous proceedings filed by other right-holder/co-sharers are binding on the present plaintiff. According to the learned counsel, defendants though may be in possession but have no right to change the nature and character of the land, nor can they raise any construction before the land is partitioned by metes and bounds. In order to show that in law what are the rights and liabilities of a co-sharer, he has cited judgments in Parsini @ Mono v. Mohan Singh and Ors., 1982 PLJ 280, Bhartu v. Ram Sarup, 1981 PLJ 204, Om Parkash and Ors. v. Chahaju Ram, (1992-2)102 PLR 75, Daulat Ram v. Dalip Singh and Ors., 1989(1) Revenue Law Reporter, 523 and Sant Ranv Nagima Ram v. Daya Ram Nagima Ram, AIR 1961 Punjab 528.
4. In answer to these submissions, Mr. H. L. Sibal Sr. Advocate, counsel for the defendants has cont
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