IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Decided on: 13.11.2025 Mahender Singh ...Appellant(s)

Vs.

Basant Kumar and others ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Azad Singh, Advocate for the appellant.

Mr. Ajit Sihag, Advocate for respondent No.1.

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NIDHI GUPTA, J.

Plaintiff is in Second Appeal against the judgment of reversal dated 01.09.2014 passed by the learned District Judge, Bhiwani; whereby Civil Appeal filed by defendant No.3 against the judgment and decree dated 26.07.2012 passed by learned Civil Judge (Junior Division), Charkhi Dadri decreeing the suit of the plaintiff, has been accepted; and suit of the appellant has been dismissed.

2. Learned counsel for the appellant/plaintiff submits that the plaintiff is co-owner and co-sharer in the suit property, which is joint in nature. Appellant is in cultivating possession of the suit property. However, defendants are bent upon to oust the appellant from the suit land. In reversing the well-reasoned judgment of the learned Trial Court, the First Appellate Court has failed to appreciate this fact. It is submitted that this contention of the appellant that he is in cultivating possession of the joint property; and that the defendants were bent upon ousting him from the said joint property has been proved on record from the evidence of the plaintiff witnesses PW1 to PW3, who have categorically attested to the above said facts in their evidence. On the other hand, defendants had failed to lead any evidence to the contrary. It is contended that accordingly in view of the evidence adduced by the appellant, suit could not have been dismissed. Therefore, impugned judgment and decree of the First Appellate Court is based on conjectures and surmises and on misreading of the evidence. In support of his contentions, learned counsel for the appellant relies upon a judgment passed by this Court in CR-3414- 2006 titled as New India Construction Co. Ltd. and others vs. Desh Raj and others, 2007(1) RCR (Civil) 387, decided on 15.09.2006; wherein it is held as under:-

“Civil Procedure Code, Order 39 Rules 1 and 2- Co-owners - Injunction against co-owner can be granted if the act of co- owner amounts to ouster or adverse to interest of co-owner out of possession - One co-owner cannot take exclusive possession of the property nor can commit an act of waste, ouster or illegitimate use, and if he - does so, he may be restrained by an injunction.”

3. He, accordingly, prays that the present Appeal be allowed; and the impugned judgment and decree dated 01.09.2014 passed by learned District Judge, Bhiwani be set aside.

4. Per contra, learned counsel for the respondents/defendants opposes submissions made on behalf of the appellant and submits that it is the admitted fact that the parties are co-sharers in the suit property. It is submitted that it is established position in law that injunction cannot be granted against a co-sharer. It is contended that except for the bald statement made by the plaintiff, there is nothing on record whatsoever to indicate that defendants have done anything to oust the plaintiff from the suit property. He, accordingly prays for dismissal of the present Appeal.

5. No other argument is raised on behalf of the parties. I have heard learned counsel and perused the case file in great detail. I find no merit in the submissions advanced on behalf of the appellant.

6. It has been contended on behalf of the appellant that the defendants are bent upon ousting the plaintiff from the suit property; and which fact has been proved from the evidence of PW1 to PW3. A perusal of the record of the case shows that the onus to prove that no act of the defendant amounts to ousting or adverse to the interest of the plaintiff, was placed by the learned Trial Court upon the defendants. It is my view that the said onus was incorrectly placed, as the defendants cannot be called upon to lead negative evidence. It is the positive case of the appellant that the