Co-sharer--Where it is shown that co-sharers are in specific possession of particular parts of jointly held property, they are entitled to an injunction in their favour qua such possession

AMOL RATTAN SINGH, J.

This regular second appeal has been filed by the two plaintiffs in a suit that was first decreed in their favour by the learned Civil Judge (Jr.Div.), Nakodar, on 13.12.2012, but with that judgment and decree reversed by the Ist Appellate Court vide its judgment and decree dated September 23, 2015, thereby dismissing the suit.

2. The appellants-plaintiffs had sought a decree to permanently injunct and restrain the respondents-defendants from interfering in their 'peaceful possession of land measuring 106 kanals 14 marlas', fully described in the head note of the plaint. They specifically sought that no construction should be raised over the suit property without partition of the land in dispute, by metes and bounds, as may be ordered by a Court or competent authority.

In the alternative, they sought a decree of mandatory injunction, directing the defendants to remove the foundation of the land in dispute, which as per the plaintiffs, had been filled on the back of the applicants' land without getting the land partitioned.

3. As per the case of the plaintiffs, they are co-sharers in possession of the suit land but not being able to derive full benefit of the unpartitioned land, they had also filed a case for partition in the Court of the Assistant Collector Ist Grade, Nakodar, which was still pending at the time of filing of the suit out of which this second appeal arises.

The defendants were stated to have purchased land from a co-sharer, over which they had started threatening to raise construction, despite partition of the jointly held khewat not having taken place.

4. Notice in the suit having been issued, the respondents-defendants filed their written statement in which, on merits, they stated that they were in possession of the suit land qua their own share and had not threatened the plaintiffs in any manner.

With a replication having been filed, the following issues were framed by the learned Civil Judge (Jr.Div.), Nakodar :-

“1. Whether plaintiff is entitled for permanent injunction as prayed for? OPP

2. Whether plaintiff is estopped by his own act and conduct from filing the present suit? OPD

3. Whether suit is not maintainable? OPD

4. Whether the plaintiffs has not come to the Court with clean hands? OPD

5. Whether plaintiff has no locus standi to file the present suit? OPD

6. Whether plaintiff has no cause of action to file the present suit? OPD

7. Relief.”

The five plaintiffs examined the present appellants Sat Pal Kaur and Mohinder Kaur (both also plaintiffs), and relied upon a jamabandi (record of rights) for the year 2003-04 (Ex.P1), as also a certified copy of the application seeking partition of the land (Ex.P2), in support of their suit.

The respondents-defendants examined defendant no.1 Joginder Singh and one Gurbax Singh, further relying upon two sale deeds dated 16.01.1979 and 01.09.1993 (Exs.D1 and D2 respectively).

5. The learned trial Court, relying upon the jamabandi as also the application for partition of the land, further relying upon the statement of the defendant in his cross-examination, to the effect that the suit land was still to be partitioned, held that in such a situation the defendants could not raise any construction over any specific side or portion of the land, till it was partitioned.

Thus the suit was decreed in favour of the plaintiffs.

6. The learned Ist Appellate Court on the other hand found that even as per the jamabandi Ex.P1, the parties to the lis, were shown to be co-sharers to the extent of a half share in khasra no.6//25/2 min (to the extent of 5 kanals and 2 marlas and 2 kanals and 6 marlas), with plaintiff no.2, Kamlesh (not an appellant in this appeal but an appellant before the learned Ist appellate Court), also shown to be in specific possession of the said khasra number (to the extent of 5 kanals and 2 marlas), with the defendants shown to be in possession of 2 kanals and 6 marlas.

A similar situation was found to be existent qua other khasra numbers in the