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2008 Supreme(P&H) 617
2008(3) LAW HERALD (P&H) 1957
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajive Bhalla
C.R No.3910 of 2007
Mohan Lal
v.
Preet Kumar
{Decided on 03/03/2008}
For the Petitioner:Mr. Chetan Mittal, Sr. Advocate with Mr. Vishal Garg, Advocate.
For the Respondents:Mr. Sachin Mittal, Advocate.
IMPORTANT POINT
Injunction--Possession by way of partition--Whether an injunction can be issued against a co-sharer and if so in what circumstances--Explained
Headnote:Injunction--Possession by way of partition-- Petitioners seek to assert sole and exclusive ownership and possession over the suit land--Imperative for the Courts below to protect the property during the pendency of the suit to prevent its dispossession
Civil Procedure--Injunction--Temporary injunction--Suit for possession by way of partition--Rights and Liabilities of co-shares--Plea of ouster also--Whether an injunction can be issued against a co-sharer and if so in what circumstances--Held; Interalia;
(i) As a general rule, an injunction shall not issue against a co-sharer in possession.
(ii) The said rule, is not absolute and admits to certain exceptions.
(iii) Where, by acts that are prejudicial or detrimental to or adverse to the interest of other co-owners or where a co-owner in possession commits such act as would diminish the value and utility of the property, the other co-sharers may, the circumstances permitting, be granted an injunction against a co-sharer in possession.
(iv) In all other situations, the remedy of a co-sharer is to pray for partition of the suit property by approaching the appropriate forum, whether revenue or civil Courts, dependent upon the nature of the property--|Civil Procedure Code, 1908, Order 39, Rules 1 & 2.
(B) Civil Procedure--Injunction--Temporary injunction--Suit for possession by way of partition--Petitioners seek to assert sole and exclusive ownership and possession over the suit land--It was imperative for the Courts below to protect the property during the pendency of the suit to prevent its dispossession--Court below rightly directed parties to maintain status quo--|Civil Procedure Code, 1908, Order 39, Rules 1 & 2.
Rajive Bhalla, J.:-Challenge in this revision petition is to an order, dated 21.4.2006, passed by the learned Civil Judge (Junior Division), Gurgaon, whereby parties-have been directed to maintain status quo regarding construction and alienation over the suit property till the decision of the suit for partition on merits, as also to an order, dated 16.5.2007, whereby the defendants/petitioner’s appeal, filed against the aforementioned order, has been dismissed.
2. The plaintiffs-respondents filed a suit for possession by way of partition, inter-alia pleading that vide registered sale deed, dated 30.9.1959, Hira Lal, Gurdayal Sharma and Mohan Lal Bhardwaj purchased land comprising of Khasra No.412. Hira Lal passed away and was succeeded by his widow. Smt. Lakshmi Devi, sons Narottam, Harbans Lal, and daughters Maya Devi and Shanti Devi, who sold their 1/3rd share in the aforesaid property, vide registered sale deed, dated 26.7.1971 to Maharaj Kishan son of Arjun Dass, predecessor-in-interest of the plaintiffs and delivered possession in respect thereof. Vide registered sale deed, dated 15.7.1971, Gurdial Sharma, owner of another 1/3rd share, sold his share to Maharaj Kishan and delivered possession. After purchase of these shares, Maharaj Kishan became owner in possession of 2/3rd share. As Maharaj Kishan and his wife expired, the respondents, who are their legal heirs, became owners in possession to the extent of 2/3rd share of the suit property. It was further asserted that the petitioners executed sale deeds, dated 27.10.2005, 11.11.2005, 25.1.2006, 27.1.2006 in favour of defendant Nos.3 to 5, defendant No.6, defendants No.6 & 7, and defendants No.8 to 11, each measuring 300 square yards respectively. The suit was accompanied by an application, under Order 39 Rules 1 & 2 read with Section 151 of the CPC praying for the issuance of an injunction restraining the defendants from raising any construction on any specific portion of the suit property and from effecting any further transfers of specific portions.
3. The petitioners-defendants filed a written statement raising preliminary objections as to locus standi, concealment of facts etc. On merits, it was admitted that Khasra No. 412 was jointly purchased by Hira Lal, Gurdayal and Mohan Lal. Gurdayal and Hira Lal decided to set up a joint partnership business along with Devki Devi. Eventually, they entered into a partnership and set up a business in the name and style of “Geeta Potteries”, with Hira Lal and Gurdayal contributing 2/3rd share i.e southern portion of Khasra No.412, whereas Devki agreed to spend the entire amount to set up the business. A factory premises was constructed in the 2/3rd share of Gurdayal and Hira Lal. Thus, in essence; co-ownership ceased to exist and the petitioners became exclusive owners in possession of the land in their possession. Subsequently, on account of losses to the business, recovery proceedings were initiated against Geeta Potteries and its land was attached and thereafter put to auction. The land was purchased by one Manohar Lal. Pursuant to a revision/further proceedings, filed by Devki Devi, auction proceedings were set aside, without any contribution by Hira Lal and Gurdayal. Devki Devi executed a will and bequeathed her share in the partnership and factory premises in favour of Asha Bhardwaj-defendant No.2. However, as the partnership was never dissolved, Gurdayal and Hira Lal were incompetent to execute the sale deeds and even otherwise were no longer co-sharers of the land and were mere partners of Geeta Potteries. The sale deeds, executed in favour of Maharaj Kishan, are illegal and void. It was further asserted that Mohan Lal, defendant No.1, sold plots out of his own land, which was in his exclusive possession.
4. After considering the arguments, raised by respective parties, the trial Court held that though-no injunction could be granted against a co-sharer but as rights as to separation of interest have to be determi
