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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Raj Mohan Singh, J.
Om Parkash - Appellant
Versus
Rohtash And Ors. - Respondents
Civil Revision No. 5717 of 2018 (O&M)
Decided On : 04-07-2019
Co-sharers - Property Dispute - Order 39 Rules 1 and 2 CPC - [Sant Ram Nagina Ram vs. Daya Ram Nagina Ram, AIR 1961 Punjab 528, Bhartu vs. Ram Sarup, 1981 PLJ 204, Ram Chander vs. Bhim Singh and others, (2008-3) 151 PLR 747, Jangir Singh vs. Naranjan Singh and others, 2015 (1) R.C.R. (Civil) 49, Bachan Singh vs. Swaran Singh, (2000-3) 126 P.L.R. 416] - The court discussed the rights and liabilities of co-sharers as defined in various cases and emphasized that mere occupation of a larger portion of joint property does not necessarily amount to ouster unless proved by exclusive and hostile possession. The court held that the construction by the defendants did not amount to ouster of the plaintiff and that the plaintiff's remedy was to seek partition.
Fact of the Case:
The plaintiff filed a suit for permanent injunction against the defendants/co-sharers, alleging encroachment upon the land. The trial Court granted order of status quo, which was reversed in appeal on the premise that the suit was barred by Section 47(h) of the Specific Relief Act.
Finding of the Court:
The court found that the construction by the defendants did not amount to ouster of the plaintiff and that the plaintiff's remedy was to seek partition. It held that the three golden principles for consideration of application under Order 39 Rules 1 and 2 CPC were not in favor of the plaintiff for the grant of any interim injunction.
Issues: The issues involved the alleged encroachment by the defendants on the plaintiff's land, the grant of temporary injunction, and the rights and liabilities of co-sharers.
Ratio Decidendi: The court emphasized that the plaintiff's remedy was to seek partition and that the construction by the defendants did not amount to ouster of the plaintiff. It discussed the rights and liabilities of co-sharers as defined in various cases and held that the three golden principles for consideration of application under Order 39 Rules 1 and 2 CPC were not in favor of the plaintiff for the grant of any interim injunction.
Final Decision: The revision petition was found to be devoid of merits and was dismissed.
JUDGMENT
Raj Mohan Singh, J. - Petitioner has preferred this revision petition against the order dated 04.08.2018 passed by the Addl. District Judge, Gurugram, vide which order dated 23.01.2018 passed by the trial Court was set aside and the application under order 39 Rules 1 and 2 CPC was dismissed.
2. Admittedly parties are co-sharers in the suit land. Plaintiff filed a suit for permanent injunction against the respondents on the ground that plaintiff is co-sharer in possession of 1/4th share of land measuring approximately 375 sq. yards shown in red and green colour in the site plan attached with the plaint. The aforesaid land is comprised in Khewat No. 264/258, Khatoni No. 307, Khasra No. 318 (0 Bigha 10 Biswa 0 Biswansi) situated in revenue estate of village Islampur, Tehsil and District Gurgaon (now Gurugram) as per jamabandi for the year 2005-06. Plaintiff further alleged that the aforesaid land (though Khasra No. 307 has been wrongly shown in place of Khasra No. 318) was partitioned amongst the co-sharers orally and all the co-sharers are in possession of their respective shares. Plot of the plaintiff is adjacent to the plot of the defendants on the northern side of the plot and plot of the plaintiff is earmarked by letters "EFRGHQ' in green and red colour in the site plan. Plaintiff further alleged that the defendants are adamant to encroach upon the portion shown in red colour of the land of the plaintiff by digging foundation and by collecting building material on the spot. With this background, the suit was filed seeking permanent injunction against the defendants/co-sharers. Along with the suit, an application under Order 39 Rules 1 and 2 read with Section 151 CPC was filed.
3. The written statement filed by the defendants was allowed to be amended. In the amended written statement, the defendants contested the suit of the plaintiff by pleading following facts in para Nos. 2 and 3:-
"2. That the para No. 2 of the plaint is not admitted as stated. The possession over the joint land by the respective parties was done firstly by Maha Singh, Rohtash and Kanwar Singh shown in yellow and red colour in the site plan marked by letters ABEF. Thereafter, the plaintiff constructed his portion and then other co-sharers namely Deep Chand and Hari Singh till the last and of Khasra No. 318 which is mark by letter EFGH. The area in portion A is around 722 Sq. yards and area in portion B 253 Sq. yards shown in Yellow and Red colour which comes to 975 Sq. yards as against 999 Sq. yards as per their share of A & B. Likewise the area under the plaintiff and co-sharer Hari Singh and Deep Chand comes to 505 Sq. yards in portion-C. Whereas their share come to 481 Sq. yards. Thus, an encroachment around 24 Sq. yards is done by the plaintiff from the share of the portion of A & B.
3. That the para No. 3 of the plaint is not admitted as stated. It is correct that the property of the defendant is towards the Northern side but the portion shown in Red colour is not as per the spot. The partition shown HGQR in the site plan of the plaintiff is not a vacant portion but already of a pucca house belonging to the defendants which is marked as CDEF in the site plan submitted by the defendants which was constructed way back in the year 1996 by the defendants. When the plaintiff constructed his Four story house three years back, the back portion of the defendants was damaged is shown as CIEJ in the site plan and the defendants are now repairing the same after demolishing the back portion towards west fully shown in the site plan of the defendants marked as CIEJ and a Pucca Wall on this portion of around 10" height is there in portion. The rest of the portion of the house towards East is in existence since 1996 comprising four Rooms and staircase marked by letter IDJF in the site plan. As such, the site plan submitted by the plaintiff is completely wrong. It is pertinent of mention here that except the share of the plaintiff and Deep Chand and Hari Singh
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