In CR-2304-2022(O&M)-PUNJ HC- Co-sharer in exclusive possession of separate parcel of land can seek injunction against other co-sharers, who are not in possession of requisite land: P&H HC Justice Archana Puri [14-07-2022]

Read Order: Rahul v. Pirthi Raj and Others

Monika Rahar

Chandigarh, July 16, 2022: The Punjab and Haryana High Court has recently upheld the observation of the lower Appellate Court that any finding given by the revenue court, has no bearing on the decision with regard to the issue, between the parties, during the pendency of the civil suit. 

Also, the Bench of Justice Archana Puri has held, “Thus, one of the co-sharers, who is in exclusive possession of separate parcel of land can definitely seek injunction against other co-sharers, who are not in possession of the requisite land. As in the revenue record, the exclusive possession of respondent-plaintiff is reflected, he has a right to protect the same.”

Challenge in the present revision petition was to the order of the Addl. District Judge, Fazilka, whereby, the order of the Civil Judge (Jr. Divn.), Abohar was reversed and the injunction application was allowed.

Essentially, in this case, the now first respondent (original plaintiff) filed a suit for permanent injunction against the present petitioner and performa respondents, thereby restraining them from interfering into the peaceful possession over the suit land.

Further restraint had also been sought from destroying/damaging the Kinnow orchard and interfering in the cultivation and irrigation of the land by the plaintiff. Along with the plaint, an application under Order 39 Rule 1 and 2 CPC was also filed.

At first instance, the application under Order 39 Rule 1 and 2 CPC was dismissed by the Civil Judge (Jr. Divn.), Abohar with an observation that Khasra Girdawari was challenged before the Court of Assistant Collector-II, Khuian Sarwar wherein an order was passed with regard to the correction of Khasra Girdawari, whereby the said application has been consigned to record room sine-die, till the final decision of the suit.

It was also opined that there was concealment of the material facts by the respondent/plaintiff, with regard to the pendency of the application for correction of Khasra Girdawari before the Court of Assistant Collector-II, Khuian Sarwar, while filing the original suit.

Hence, the application was dismissed.

In appeal, the application under Order 39 Rule 1 and 2 CPC was allowed. The present petitioner and performa respondents were restrained from interfering into the peaceful possession of the plaintiff over the suit property and further restrained from destroying/damaging the Kinnow orchard and from interfering in cultivation and irrigation of the said land by the plaintiff, during the pendency of the main suit, illegally, forcibly, except in due course of law.

Aggrieved, the third defendant (the petitioner) filed the present revision petition. 

At the very outset, the Court came to the conclusion (by perusing the important dates) that the suit was filed much prior to the filing of an application for correction of Khasra Girdawari, therefore, wrong observation was made in the order of the Civil Judge (Jr. Divn.), about concealment of the pendency of application for correction of the Khasra Girdawari. 

Further, the Court noted that as per the Jambandi of the suit property for the year 2017-2018, which was brought on record, it was evident that the respondent-plaintiff was shown to be co-sharer of the joint khata and he was in exclusive possession of the suit property. 

Also, it was noted that petitioner was now shown to be co-sharer in joint khata, through a mutation reflected in Jamabandi for the duration 2017-18, but the plaintiff was shown to be in exclusive possession. Thus, Justice Puri opined that one of the co-sharers, who is in exclusive possession of a separate parcel of land, can definitely seek injunction against other co-sharers, who are not in possession of the requisite land.

Further, in respect of the reliance placed on the proceedings recorded by Naib Tehsildar where it was alleged that the possession of the suit property was with the defendants, the Court opined that it the lower Appellate Court rightly observed that any finding given by the revenue court, has no bearing on the decision, with regard to the issue, between the parties, during the pendency of the civil suit. “It has been also rightly observed that the proceedings have been recorded, after institution of the present suit“, the Court observed. 

Accordingly, the Court upheld the decision of the lower Appellate Court and dismissed the revision petition.