Punjab-Haryana High Court
Dcm Shriram Consolidated Ltd. vs Jai Singh on 15 February, 2006
Equivalent citations: AIR2007P&H17, (2006)143PLR389, AIR 2007 PUNJAB AND HARYANA 17, 2007 A I H C (NOC) 169 (P&H), (2006) 44 ALLINDCAS 896 (P&H), (2006) 2 CIVILCOURTC 106, (2006) 2 LANDLR 148, (2006) 2 PUN LR 389, (2006) 2 RECCIVR 118, (2006) 2 ICC 765, (2006) 4 CURCC 237
JUDGMENT M.M. Kumar, J.
1. A short question raised in this petition filed under Article 227 of the Constitution is whether the defendant-petitioner is entitled to raise construction of their factory on the land in question on the plea that it is in exclusive possession of the suit property. A related question would also arise whether raising of such a construction amounts to ouster of the rights of other co-sharer to it adversely affects his interests who is out of possession? The aforementioned proposition is no longer res integra because conflict of various Single Bench judgments has been resolved by a Division Bench of this Court in the case of Bachan Singh v. Swaran Singh . By overruling of the judgments which prohibited a party in exclusive possession to raise such a construction the Division Bench has laid down as under:
15. On a consideration of the judicial pronouncements on the subject, we are of the opinion that:
(i) a co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of co-owner out of possession,
(ii) Mere making of construction or improvement of, in the common property does not amount to ouster.
(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.
(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is deterimental to his interest.
In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co-owner.
16. In this view of the matter, we are unable the propositions laid down by the learned Single Judge of this Court in Nazar Mohd. Khan v. Arshad Ali Khan and Ors. , wherein his Lordship broadly stated that there is no denying the fact that a co-sharer has no right to raise construction until the land is partitioned by metes and bounds and so even when one of the co-sharers is in exclusive possession of a particular piece of land any other person can seek injunction restraining the other co-owner from raising construction. We accordingly over-rule the said decision of the learned Single Judge of this Court and also the decisions in Mst. Parini alias Mono v. Mahan Singh 1982 P.LJ. 280, Om Parkash and Ors. v. Chhaju Ram and Daulat Ram v. Dalip Singh 1989(1) Rev.L.R. 523.
I have prefaced the judgment by question of law and the reply thereto on account of the facts that the Division Bench furnishes a binding precedent within these jurisdiction.
2. Brief facts of the case may be noticed. The plaintiff-respondent instituted Civil Suit No. 351 of 2004 on 1.6.2004. He also filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'). His case in brief is that he is joint owner in possession to the extent of l/6th share along with his brothers Lakhpat Singh, Dharam Singh, Jai Bhagwan, Karam Singh and Rajpal alias, Rampal in the total land. The defendant-petitioner had purchased the share of Dharam Singh, which is 476/8212, by registered sale-deed 25.2.2004. Obviously, the defendant-petitioner became co-sharer in joint possession to the extent of the land purchased by it. The aforesaid land is abutting to the metalled road leading from Karnal to Kaithal and is more valuable in comparison to the other land of the co-sharers. No partition has taken place and, therefore, it is in joint ownership of all the brothers. The defendant-petitioner with ulterior motive and on account of becoming co-sharer have been trying to change the nature of the suit property by installing a factory and show-room in that land, which in fact is agricultural land.
3. The case of the defendant-petitioner is that as per the jamabandi of the year 2000-2001, its vendor has been shown to be owner alongwith his four other brothers, namely, Lakhpat Singh, Jai Bhagwan, Karam Singh and Rajpal. As a matter of fact, a family partition had taken place amongst all the brothers/co-sharers several years ago. As per the family partition, every co-owner was allotted a separate piece of land and since then everyone is in actual physical possession, cultivating the land falling to their share exclusively, independently, continuously and without any interruption. It was inadvertently that the mutation of mutual partition could not be recorded and sanctioned. The plaintiff-respondent has been shown to be owner to the extent of l/6th share and his possession has been recorded as Kasht Hissedari. The vendor or the defendant-petitioner Dharam Singh is also recorded owner to the extent of 1/6th share of the total land. He is shown to be exclusively as Kast Hissedari over the land of his share and as per jamabandi for the year 2000-2001. Likewise, the other co-sharers have also been recorded to be co-sharer in exclusive possession over the suit land.
4. The learned trial Court recorded a prima facie finding that at least from the year 1990-1991 all the co-sharers were having separate possession. As sufficient time had passed without filing any application for partition of land, it was considered safe to conclude that the parties have mutually agreed to the partition effected by mutual arrangement. In such a situation a specific portion could be sold by a co-sharer and the purchaser is to enter his footstep. The purchaser-co-sharer cannot be restrained from raising construction on the specific portion. Accordingly, the trial Court declined the application of the plaintiff-respondent, filed under Order XXXIX Rules 1 and 2 of the Code, restraining the defendant-petitioner from raising construction.
5. On appeal, the learned lower Appellate Court reversed the view of the trial Court without reversing the prima facie finding of the learned trial Court. The learned lower Appellate Court preferred to proceed on the presumption that the land is joint in the hands of the parties. The view of the learned lower Appellate Court is discernible from para Nos. 10, 11 and 12 of the impugned order and the same reads as under:
10. From the above observation made by Hon'ble High Court, a very short question now arises as to whether respondent can be allowed to raise the construction of their factory on the joint land of the parties. If the raising of such construction does not amount to ouster of a co-sharer, which is not prejudicial or adverse to the interest of the co-owner out of possession or if it does not diminish the value of utility of the land in question or if the same is not detrimental to the interest of other co-sharer/co-sharer only then he can be allowed to raise such construction only after getting a joint holding partitioned.
11. Admittedly, by raising construction of a factory over the undivided joint holdings of the parties, the use of land would change. The land in question is admittedly, an agricultural one and if the other party uses the same for establishment of commercial unit, then it would certainly change the use of the land and it would certainly diminish the value or utility of such land. There is no doubt that a co-sharer can raise the construction on the joint land of the parties, but such construction should not change the nature of the land and should not be of a permanent nature diminishing the value and utility of such land. In other words, no such construction detrimental to the interest of other co-owner can be raised.
12. Raising of construction of a factory for installation of heavy machineries therein is a commercial use and which is totally foreign to the agriculture use. Thus, I find a substance in the plea of learned Counsel for the plaintiff that use of such land would result into unnecessary complication even in the partition proceedings, which are admittedly pending between the parties, and therefore, there is a prima facie case the balance of convenience in favour of the applicant because if the agricultural land is used for commercial activities, then such use of land would certainly be detrimental to the interest of the other co-sharers and it would cause such irreparable loss to other party, which cannot be compensated in terms of money. Thus, all the three principles laid down for issuance of injunction have existed in favour of the appellant/plaintiff.
6. Mr. Dinesh Goyal, learned Counsel for the defendant-petitioner has argued that the learned trial Court has recorded a categorical finding that the defendant-petitioner along with others are in exclusive separate possession for the last sufficient long time. The oldest jamabandi produced on record is of the year 1990-1991. As no efforts have been made by the parties for partition of the land by filing an application before the Collector, it has been rightly presumed that the parties have mutually agreed with the partition by accepting each other's exclusive possession. In such a situation, a specific portion was capable of being sold, which was done in this case by execution of registered sale-deed dated 25.2.2004. According to the learned Counsel the aforementioned findings have not been reversed by the learned lower Appellate Court expressly and without referring to any material to the contrary. He has maintained that, in fact, there is no material on record to that effect. He has further submitted that without reversing the aforementioned finding, the judgment of this Court in Bachan Singh's case (supra) could not be made in-applicable, which clearly laid down that a person with exclusive possession is entitled to use the property against all others who is/are not in possession of that part of the property unless it is shown that any act of the person in possession, would amount to ouster, prejudicial or adverse to the interest of the co-owner and out of possession and that mere raising of construction or improvement in the common property would not amount to ouster. Therefore, it has been maintained that the view taken by the learned lower Appellate Court is liable to be set aside.
7. Mr. Vibhav Jain, learned Counsel for the respondent has argued that the defendant-petitioner has not been able to prove exclusive possession in respect of its l/6th share. According to the learned Counsel, in the transfer deed dated 25.2.2004, the vendor has not purchased specific area but only a share of 476/8212 share of a co-sharer. He has also referred to the assertion made by the plaintiff-respondent that the land is not partitioned and it continuous to be in joint ownership and possession.
8. Having heard learned Counsel for the parties and pursuing the orders passed by both the Courts below, I am of the considered view that this petition deserves to be allowed. The learned trial Court has categorically recorded a finding that the parties are in exclusive possession at least since 1990-1991. It has further been concluded that the aforementioned mutual separate possession has been accepted by the parties and, therefore, the vendor of the defendant-petitioner is deemed to have sold a separate share in his possession to the defendant-petitioner. However, the learned lower Appellate Court without reversing the afore-mentioned finding has proceeded to hold that if the defendant-petitioner is permitted to raise construction then it would result into changing the nature of the property. It has further been held that raising of construction would be prejudicial and would adversely affect the interest of the plaintiff-respondent. Such a view could not have been taken unless prima facie findings recorded by the learned trial Court were set aside by referring to the record of the year 1990-1991. It was incumbent upon the lower Appellate Court to adopt the aforementioned course because the question of prohibiting to raise construction by the defendant-petitioner would be dependent singularly on the prima facie finding of fact whether there is mutual partition between the co-sharers so as to conclude that everyone is in possession of their own share for a pretty long time. The aforementioned prima facie finding has been recorded by the trial Court. In the absence of reversing that finding it is improper for the lower Appellate Court to conclude that the defendant-petitioner would be injuncted from raising construction on the suit land or that it would result into prejudice adversely affecting the interests of the plaintiff-respondent. Therefore, the revision petition deserves to be allowed on this ground alone.
9. For the reasons stated above, this petition succeeds. The impugned order passed by the learned lower Appellate Court dated 17.3.2005 is set aside. The case is remanded back to the learned lower Appellate Court for deciding the appeal afresh on merits and on the basis of the record. However, the parties shall maintain status quo during the pendency of the appeal before the learned lower Appellate Court. Learned lower Appellate Court is directed to decide the appeal expeditiously, preferably within a period of three months from the date of certified copy of this order is brought to the notice of the learned District Judge. The parties through their counsel are directed to appear before the learned lower Appellate Court on 6.3.2006.
10. Any observation made in this order shall not be construed as an expression of opinion on the merits of the case and the learned lower Appellate Court shall proceed afresh in accordance with law.