In RSA-5381-2019 (O&M)-PUNJ HC- By seeking injunction, joint owner cannot prevent usage of portion of joint property by another co-owner unless it amounts to wastage, destruction or injury to other co-owners: P&H HC Justice Alka Sarin [25-07-2022]

Read Order: Tarsem Singh (deceased) through his LR v. Major Singh (deceased) through his LRs & Others 

Tulip Kanth

Chandigarh, July 26, 2022: While dismissing the regular second appeal, preferred by the plaintiff-appellant, against the judgment of the Courts below whereby his suit for permanent injunction had been dismissed, the Punjab and Haryana High Court has expressly held that once the suit land is not partitioned and the parties to the suit are co-sharers and co-owners, each and every co-sharer is in possession of every inch of land.

The Bench of Justice Alka Sarin further clarified, “A joint owner cannot prevent by injunction the usage of a portion of the joint property by another co-owner unless this amounts to wastage or destruction or injury to the other coowners. Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.” 

In this matter,the plaintiff-appellant averred that he along with his brothers, Harbans Singh and Jarnail Singh, have been in exclusive possession as cosharers in land located in the area of Village Chak Guru, Tehsil Garhshankar. The brothers of the plaintiff-appellant are residing in England and the plaintiff-appellant is cultivating their share in the suit land. It was further the case that the plaintiff-appellant and his brothers are in exclusive possession of the suit land for more than 30 years as co-sharers but the suit land along with other land is joint with the owners.

It was alleged that the defendant-respondents had started threatening the plaintiff-appellant that they would interfere into the lawful and exclusive possession of the plaintiff-appellant in the suit land, illegally and forcibly. Hence, the present suit.

The defendants stated that by way of mutual adjustment, the defendant-respondents and their brothers have been in possession of a certain  portion of the land wherein they constructed their residential houses. It was also stated that the defendant-respondents have kept a wide space from the eastern portion of land comprised in the portion of the land in the eastern side in which the gates of the residential houses of the defendant-respondents open and they have been using the space out of southern portion for approach as passage to their residential house without any sort of obstruction for last more than 20 years as a matter of right and by way of easement of necessity.

The defendant-respondents had also filed a counter-claim for a decree of permanent injunction so as to restrain the plaintiff-appellant from raising any sort of construction or putting any sort of obstruction. The plaintiff-appellant contested this counter-claim and filed a written statement. 

This matter reached at the present stage when the Trial Court dismissed the suit of the plaintiff-appellant as well as the counter-claim of the defendant-respondents. Aggrieved by the said judgment and decree, an appeal was preferred by the plaintiff-appellant. The defendant-respondents filed an objection  but the lower Appellate Court dismissed both the appeal as well as the objections. Hence, the present regular second appeal was filed by the plaintiff-appellant.

According to the Bench, the plaintiff-appellant failed to establish that he was in exclusive possession of the suit land. The counsel for the plaintiff-appellant placed reliance on the jamabandi and the khasra to contend that the plaintiff appellant was in possession of the suit land. However, the Courts below found that the evidence of the plaintiff-appellant was rebutted by the defendant-respondents and even the Local Commissioner had submitted a report to which no objections were filed, noted the Bench.

The Bench was unable to apply the ratio of the Full Bench in Bhartu vs. Ram Sarup,1981 PLJ 204, to the facts of the present case as here the plaintiff-appellant failed to establish his exclusive possession over the suit land and there was no finding that any act by the defendant-respondents was detrimental to the interests of the other co-owners in the joint land.

Thus, without finding any illegality in the judgments passed by both the Courts below, Justice Sarin dismissed the Appeal.