Read Order: Smt. Kamla & Another v. Jasbir & Another
Chandigarh, March 21, 2022: While dealing with a regular second appeal, the Punjab and Haryana High Court has held that a co-sharer can claim injunction against another co-sharer if he is in exclusive possession.
The Bench of Justice Alka Sarin also held that the remedy of the other co-sharer not in possession will not be ousting him forcibly but would rather be to go in for partition and to claim mesne profits
The plaintiff-appellants approached the Court in the second appeal against the decisions by both the lower Courts whereby their suit for a permanent injunction was dismissed.
The facts of the case are such that Jage Ram was the owner in possession of a residential plot, who after his death was inherited by the first plaintiff-appellant and her brother Leelu Ram in equal shares being the Class-1 legal heirs of the deceased. Leelu Ram died in 2014 leaving behind the second defendant-respondent who inherited his half share in the suit property. In 2015, the second defendant-respondent sold her share in the suit property in favour of the first defendant-respondent vide a registered sale deed.
In 2015 the plaintiff-appellants filed the present suit for a permanent injunction against the defendant-respondents for restraining them from dispossessing the plaintiff-appellants from the suit property. By a judgment and decree, the Trial Court dismissed the suit but also directed the plaintiff-appellants and the defendant-respondents to maintain joint possession of the suit property, being co-sharers to the extent of 1/2 share each, till it is partitioned by metes and bounds.
The plaintiff-appellants filed an appeal against the decision by the Trial Court. However, by a judgement and decree the Lower Appellate Court dismissed the appeal. Hence, this regular second appeal by the plaintiff-appellants.
The counsel for the plaintiff-appellants contended that the judgments passed by the Courts below were illegal and erroneous in as much as the suit property was not yet partitioned, still, the second defendant-respondent sold her share in the suit property to the first defendant though, the plaintiff-appellants were having a preferential right in the suit property.
She further contended that the second defendant-respondent sold a specific portion of the suit property which was illegal as she being a co-sharer had no right to sell any specific portion. The counsel further submitted that the first defendant-respondent could not take possession of the suit property without getting the same partitioned through the competent court and that the possession of the plaintiff-appellants deserved to be protected. Reliance was placed upon the decision by the Division Bench of this Court in Bachan Singh vs. Swaran Singh , 2001(1) ILR Punjab 340.
At the outset, the Court opined that a co-sharer can claim injunction against another co-sharer if he is in exclusive possession. The Court further opined that the remedy of the other co-sharer not in possession is not ousting him forcibly but his remedy is to go in for partitijon and to claim mesne profits.
On the factual aspects of the case, the Court opined that in the present case the plaintiff-appellants were not in possession of the suit property. Further, the Court observed that Rajesh son of Ramphal while appearing as the first Prosecution Witness admitted in his cross-examination that his maternal uncle Leelu Ram and his wife Kavita (the second defendant-respondent) were permanently residing in village Sidipur and were using the suit property themselves. He also admitted that his mother (the first plaintiff-appellant) never remained in possession of the suit property at the spot. Another prosecution witness also admitted in his cross-examination that the first plaintiff-appellant was residing with her in-laws since the time of her marriage and that the rooms in the suit property were constructed by Leelu Ram.
“These candid admissions make it amply clear that the plaintiff- appellants were not in possession of the suit property and thus cannot pray for grant of an injunction to protect their possession”, adjudged the Court.
Further, the Court opined that the counsel for the plaintiff-appellants was unable to point out any act by the defendant-respondents which were detrimental to their interest as co-sharers. Justice Sarin added that she was also unable to point out any act by the defendant-respondents by which the value or utility of the suit property was diminished.
“Thus, the plaintiff-appellants have failed to make out a case for grant of an injunction in their favour. Though the Trial Court dismissed the suit of the plaintiff-appellants, it safe-guarded their share by directing the parties “to maintain joint possession of suit land, being co-sharers to the extent of 1/2 share each, till it is partitioned by metes and bounds”, said the Bench while dismissing the petition.