Co-owners cannot seek injunction against each other; the remedy is partition.

Vinod K.Sharma, J.

1. This regular second appeal is directed against the judgment and decree dated 23.11.2005 passed by the learned Courts below vide which suit filed by the plaintiff / appellant for declaration that the plaintiff / appellant was owner in possession of land measuring 6 Kanals, bearing Khata No. 231/401, Khasra No. 170//13/1(6-0), as entered in the jamabandi for the year 1988-89, situated at village Handiaya (A) Tehsil Barnala on the basis of sale deed No. 2150 dated 2.6.1988 with a consequential relief of permanent injunction, has been ordered to be dismissed.

2. The plaintiff claimed himself to be owner in possession of the suit land on the basis of sale deed said to have been executed by Avtar Singh one of the co-sharers of the property. The sale deed was executed on 2.6.1988. However, prior to the execution of the sale deed Babu Singh, defendant / respondent had filed a suit for partition of joint holding. In the partition the property in dispute fell to the share of Babu Singh.

3. The claim raised was that the plaintiff being not party in the suit for partition was not bound by the partition.

4. The learned Courts below have non-suited the plaintiff / appellant in view of the partition proceedings initiated by Avtar Singh in which the order of partition had been passed and the disputed property fell to the share of Babu Singh.

5. The learned lower appellate Court was pleased to observe that the remedy with the plaintiff / appellant was to pursue the matter with the revenue authorities in the partition proceedings where his title could also be decided. The suit filed by the plaintiff / appellant was dismissed.

6. The learned counsel for the appellant contends that the appeal raises the following substantial question of law for consideration :-

"Whether a co-sharer can seek injunction against other co-sharer when he is in exclusive possession of the suit property ?"

7. In support of the substantial question of law the learned counsel for the appellant contends that by way of a registered sale deed the plaintiff had purchased the property from one of the co-sharers Avtar Singh, and he was put in possession thereof. The factum of handing over possession to the plaintiff was duly recorded in the sale deed, therefore, the plaintiff was shown to be in established possession, therefore, was entitled to injunction against the defendant / respondents especially when the mutation qua 6 Kanals of land stood sanctioned by the revenue authorities in his favour, and the order has attained finality.

8. However, this contention of the learned counsel for the appellant cannot be accepted.

9. It is not disputed that prior to the sale deed in favour of appellant / plaintiff defendant No.1 had already initiated partition proceedings of the suit filed against, the predecessor- in- interest of the plaintiff in said case a decree for permanent injunction was passed restraining Avtar Singh i.e. the vendor of the plaintiff / appellant from alienating any specific khasra or handing over possession of any khasra number except by way of partition.

10. The plaintiff is admittedly drawing title through Avtar Singh and, therefore, it could not be said that he had any right to seek injunction against other co-sharer on the basis of alleged established possession, in view of injunction order as also order of partition.

11. The substantial question of law is decided against the appellant by holding that the plaintiff / appellant has failed to prove his established possession, in order to seek injunction, against a co-owner, against the established law that co-owner is not entitled to seek injunction against other co-owner and the remedy is partition.

This appeal is dismissed with costs, which are assessed at Rs. 10,000/-(Rupees ten thousand only).