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2015 Supreme(P&H) 725
PUNJAB & HARYANA HIGH COURT
Ritu Bahri, J.
Jas Ram - Appellant
Versus
Bis Ram - Respondent
R.S.A. No. 878 of 2013 (O&M)
Decided On : 04-05-2015
For the Appellant :M.S. Kathuria, Advocate for Rakesh Nehra, Advocate
For the Respondents:Pawan Kumar, Sr. Advocate and Anshuman Mandhar, Advocate
A co-owner in possession is entitled to injunction if the act of the co-owner in possession is detrimental to the interest of other co-owners.
Headnote:
Co-sharer - Ownership Dispute - [Transfer of Property Act, Section 44, Specific Relief Act, Section 38] - The court discussed the ownership dispute between co-sharers and the application of Sections 44 of the Transfer of Property Act and Section 38 of the Specific Relief Act. The court referred to relevant case laws to establish the principle that a co-owner in possession is entitled to injunction if the act of the co-owner in possession is detrimental to the interest of other co-owners.
Fact of the Case:
The respondent claimed ownership of agricultural land and sought perpetual injunction against the appellant. The trial court dismissed the suit, but the lower appellate court decreed the suit in favor of the respondent.
Finding of the Court:
The court found that the respondent was a co-sharer in possession of the land and the appellant was restrained from ousting the respondent and interfering in his possession and ownership.
Issues: Ownership dispute, entitlement to injunction, co-ownership rights
Ratio Decidendi: The court relied on the principle that a co-owner in possession is entitled to injunction if the act of the co-owner in possession is detrimental to the interest of other co-owners.
Final Decision: The appeal was dismissed as no substantial question of law arose for adjudication by the court.
C.M. No. 2428-C of 2013
1. For the reasons mentioned in the application, delay of 25 days in re-filing the present appeal is condoned.
2. The application stands disposed of accordingly.
R.S.A. No. 878 of 2013
3. The present regular second appeal is directed against the judgment and decree dated 17.08.2012 passed by Addl. District Judge, Palwal whereby the judgment and decree dated 10.06.2010 passed by Addl. Civil Judge (Sr. Divn.) Palwal was dismissed whereby the suit of the plaintiff/respondent (herein after to be referred as 'the respondent') was dismissed.
4. Brief facts of the case put forth by the respondent is that he was claiming himself to be owner in possession of agricultural land comprised in Khewat No. 280, Khatoni No. 374 Rectangle No. 20, Killa No. 25 (9-4), measuring 9 kanals 4 marlas, situated within the revenue estate of village Bhulwana, Tehsil Hodal, District Faridabad as per jamabandi pertaining to the year 1992-93. He further claims that the defendant/appellant (for short 'the appellant') has no concern with right, title or interest in the suit land. However, in the revenue record, his name to the extent of 1/6th share in the suit land is wrongly entered. The respondent claimed decree for perpetual injunction against the appellant not to interfere in his possession over the suit land.
5. On notice, the appellant appeared and filed his written statement and denied the averments made by the respondent and submitted that the suit land is under his cultivating possession and prior to him, his father had been cultivating the land as "Hissedar" being co-sharer in the suit land. The appellant has been in cultivating possession of the suit land for the last more than 50 years. It has been denied that the respondent had sown the wheat crop and the wheat crop standing on the suit land belongs to him.
6. From the pleading of the parties, the trial Court framed the following issues:-
"1. Whether the plaintiff is owner in possession of the suit property mentioned in para No. 1 of the plaint? OPP
2. Whether the plaintiff is entitled to decree for permanent injunction on the grounds mentioned in the plaint? OPP
3. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD
4. Whether the suit is not maintainable in the present form? OPD
7. Relief."
7. After perusing the revenue record, it reveals that appellant and respondent are co-sharers in possession of the suit land. In jamabandi for the year 1992-93 (Ex P1), respondent has been shown as co-sharer to the extent of 5/6th share and Ram Sahai father of the appellant has been shown as owner in possession to the extent of 1/6th share in the suit land. In the subsequent jamabandis for the year 1997-98 (Ex P3, for the year 2002-03 (Ex P5) and in the copies of Khasra Girdawari 2001-02 (Ex P2), 2003 to 2005 (Ex P4), 2006 to 2008 (Ex P6) 2008 to 2010 (Ex PX), same entries have been repeated. Once the father of the appellant was shown to be owner in possession of the suit land to the extent of 1/6th share, the suit of the respondent was dismissed.
8. However, on appeal, the Lower Appellate Court reversed the finding of the trial Court and decreed the suit of the respondent to the extent that he is co-sharer and the appellant was restrained from completely ousting the respondent from the suit land and not to interfere in his possession, ownership and co-sharership to the extent of 5/6th share.
9. Reference at this stage can be made to judgment of Hon'ble the Supreme Court in a case of Tanusree Basu and others v. Ishani Prasad Basu and others 2008 (3) RCR (Civil) 519 wherein suit was filed for partition of joint family property. Status quo order was passed by the Court. Plaintiff dispossessed the defendant from a flat in his exclusive possession. Restoration of status quo ante by order of interim mandatory injunction directing the plaintiffs to put defendant in possession of the suit premises, rightly by High Court. It was held that if part takes
