A co-owner not in possession of any part of the property is not entitled to seek an injunction against another co-owner unless the act of the person in possession amounts to ouster, prejudicial or adverse to the interest of the co-owner out of possession.

JUDGMENT

Alka Sarin, J. - CM-15294-C-2019 and CM-15295-C-2019

1. The present applications have been filed for impleading the legal representatives of the original plaintiff and the original defendant No.1 who are stated to have died during the pendency of the appeal before the lower Appellate Court.

2. For the reasons mentioned in the applications, the same are allowed and the legal representatives of the original plaintiff and the original defendant No.1 are impleaded as parties in the present appeal, subject to all just exceptions.

RSA-5381-2019

3. The present regular second appeal has been preferred by the plaintiff-appellant against the judgements and decrees passed by both the Courts below whereby his suit for permanent injunction has been dismissed.

4. The case of the plaintiff-appellant is that he along with his brothers, Harbans Singh and Jarnail Singh, are in exclusive possession as co- sharers in land measuring 14 Marlas in the area of Village Chak Guru, Tehsil Garhshankar comprised in Khata No.48/76, Khasra Nos.1857/1469 (0-14). The brothers of the plaintiff-appellant are residing in England and the plaintiff-appellant is cultivating their share in the suit land. It is further the case that the plaintiff-appellant and his brothers are in exclusive possession of the suit land for the last more than 30 years as co-sharers but the suit land along with other land is joint of the owners as recorded in the jamabandi. It is alleged that the defendant-respondents have started threatening the plaintiff-appellant that they will interfere into the lawful, peaceful and exclusive possession of the plaintiff-appellant in the suit land, illegally and forcibly, to which they have no right except in due course of law and till the partition of the suit land. Hence, the present suit.

5. Upon notice, the defendant-respondents contested the suit and filed written statement. Apart from the preliminary objections raised, on merits it was averred that plaintiff-appellant, his brothers, the defendant- respondents and their brothers along with other co-sharers are co-owners in land measuring 6 Kanals 1 Marla comprised in Khewat No.48, Khatauni No.72 to 76, Khasra Nos.1460/1211 (0-11), 1584/1 to 1211 (2-12), 1667/1 to 1211 (0-4), 1739/1443 (0-19), 1938/1858 (0-13), 1937/1858 (0-18), 1857/1469 (0-14). It was also submitted that while Khasra Nos.1460, 1584, 1667 and 1739 are situated in different places whereas the land comprised in Khasra Nos.1938, 1937 and 1857 is situated in one tak and that the land comprised in Khasra Nos.1938, 1937 and 1857 has approach from the eastern and as well as southern side through a public passage which connects the said land on the eastern, southern corner. By way of mutual adjustment, the defendant-respondents and their brothers are in possession of Khasra Nos.1937, 1938 wherein they have constructed their residential houses and that the defendant-respondents and their brothers have been approaching their residential houses through Khasra No.1857 from its southern portion. It was also stated that the defendant-respondents have kept a 2 Karam wide space from the eastern portion of land comprised in Khasra Nos.1937 and 1938 in the eastern side in which the gates of the residential houses of the defendant-respondents open and that the defendant-respondents are using 3 Karams x 4 Karams wide space out of southern portion of Khasra No.1857 for approach as passage to their residential house existing in Khasra No.1937 and 1938 without any sort of obstruction for the last more than 20 years as a matter of right and by way of easement of necessity as there is no other passage to their residential houses in Khasra Nos.1937 and 1938. It was further stated that the plaintiff-appellant is not in possession of the said portion and rather the same is being used as passage by the defendant- respondents.

6. The defendant-respondents also filed a counter-claim for a decree of permanent injunction so as to restrain the plaintiff-appellan