Allahabad High Court
Smt. Gulminder Kaur And Another vs Indraj Singh Alias Neetu Singh on 9 January, 2013
Bench: Sunil Ambwani, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No.34 Judgment reserved on 20.12.2012 Judgment delivered on 09.01.2013 First Appeal From Order No.3529 of 2012 Smt. Gulminder Kaur Mahal & Anr. v. Indraj Singh Hon. Sunil Ambwani, J.
Hon. Pankaj Naqvi, J.
1. This first appeal from order under Oder 43 Rule 1 (r) of the Code of Civil Procedure arises out of an order passed by the Addl. Civil Judge (SD), Court No.2, Muzaffarnagar dated 29.8.2012 by which he has allowed the application and has issued interim injunction directing the parties to maintain status quo in respect of the trees detailed in Annexure Nos.1 to 9 with the plaint and had fixed 24.9.2012 for framing of issues.
2. We have heard Shri V.K. Gupta, learned counsel appearing for the defendant appellants. Shri Ravi Kiran Jain, Senior Counsel assisted by Shri Nipun Singh has appeared for plaintiff respondents.
3. Smt. Balreet Kaur Bhattal, sister of Shri Indraj Singh @ Neetu, the plaintiff-respondent has filed an application to be impleaded as party-respondent to the appeal. In her affidavit it is stated that she has filed an impleadment application on 11.10.2012 under Order 1 Rule 10 CPC in Suit No.1017 of 2011, Indraj Singh v. Smt. Gulminder Kaur & Ors. She has also filed an application for impleadment in the separate suit filed by the defendant appellant being Suit No.772 of 2011, Smt. Gulminder Kaur & Ors. v. Indraj Singh & Ors. pending in the same Court of Civil Judge (SD), Court No.2, Muzaffarnagar. The Original Suit No.1017 of 2011 was filed by Indraj Singh, the plaintiff respondent impleading Smt. Gulminder Kaur Mahal and her son Shri Angad Singh Mahal as defendants with prayers for a decree of permanent injunction restraining the defendants or their agents and servants not to cut the trees on the land, Annexure 1 to 9, until she gets her exclusive title declared on them or without getting the same partitioned.
The plaint allegations
4. In the plaint the plaintiff respondent has alleged that he along with defendants and some other persons, who have not been impleaded as parties, and Jaipal Singh & Ors. being their land in Village Tipperpur and Village Jaitpur Pargana Bhumma Sambhalkhera Tehsil Jansath Distt. Muzaffarnagar and in Village Haiderpur Pargana Bhumma Sambhalkhera Tehsil Jansath Distt. Muzaffarnagar. On the land in Village Tipperpur, Jaitpur Gaurasiwala and Haiderpur, the plaintiff, the defendants and Shri Jaipal Singh, who is not impleaded as party, and others established an agricultural farm with the name of Grewal Model Form, Tipperpur. The khataunies (records of title) of these lands are annexed as Annexure 1 to 9 with the plaint. In para 4 of the plaint it is stated that in these lands the plaintiff has 22 1/2 % share and the defendants have 22 1/2 % share. The rest of the share of 55% belongs to Shri Jaipal singh, who has not been impleaded as defendant in the suit. In para 5 of the plaint it is stated that there has been no partition from any Court but that the plaintiff and defendants and Shri Jaipal Singh, who has not been impleaded as party to the suit had agreed after spending substantial amount to plant poplar trees on the land and to cultivate them. The plaintiff is exclusive owner of the Poplar trees planted on the land in village Tipperpur, Jaitpur, Gaurasiwala and Haiderpur. The defendants or Shri Jaipal singh do not have any rights of any kind over these trees. It is stated in para 6 that there are about 12000 trees on the land in these three villages, which are described as disputed trees. It is then stated in the plaint that though the defendants or Shri Jaipal Singh and others had title or interest but since in the revenue records all the parties are recorded as co-tenure holders/ co-bhumidhars, the defendants are treating themselves to be co-owners of these trees. The defendants have colluded with the local revenue officers and police officers. They have influence over officers in the IAS and PCS lobby and that in connivance of these officers they want to cut away these trees, whereas they have no such rights. The defendants can at the best get partition of the trees from the competent court and can cut the trees only after getting their exclusive title determined over there. The defendants have not filed any suit in respect of these trees nor any Court has treated them to be the exclusive owner of these trees. Shri Jaipal Singh and others are also recorded as co-owners in the revenue records and that the plaintiff has also filed suit for protecting their rights. The plaintiff's interest is not contrary to the interest of Shri Jaipal Singh and has right as co-owner to file the suit for protecting the trees. The defendants want to cut away the trees with the help of some antisocial element but that the plaintiff did not permit them to do so. They have, however, threatened that they will cut away the trees with the help of antisocial elements and that cause of action for filing the suit has arisen to them on the same day, when the suit was filed on 19.8.2011.
The defence in the written statement
5. In the written statement filed by the defendants it is admitted that an agricultural farm with the name of Grewal Model Farm, Tipperpur was established by the plaintiff, defendants and other co-sharers. Shri Jaipal singh has since died on 24.6.2000 and his share has been inherited by his wife Smt. Rajni Singh. It is also admitted that the defendants have 22 1/2% share. The plaintiff, however, does not have 22 1/2% share exclusively by his own. The allegations with regard to remaining shares is vague and inaccurate. The land on the spot has been divided between the co-sharers according to oral settlement between them and they are in possession of their separate portion. Each of the group of co-owners have planted their poplar and eucalyptus trees and that they are in exclusive possession of their portions. There are about 12000 trees in the farm, which have all been planted by late Shri Anmol Ratan Singh, the husband of the defendant no.1.
6. The plaintiff is not the co-owner or exclusive owner of the trees. He is a very strong and quarrelsome person and is taking advantage of the defendant no.1 being a widow to exclusively appropriate the 22 1/2% share of the defendants in the trees. The trees were planted by late Shri Anmol Ratan Singh, the husband of the defendant no.1 in his own share with which the plaintiff have no concern. The market value of all the trees in Graval Model Farm is more than Rs.3 crores.
7. It is further stated in the written statement that in the revenue records the plaintiffs and the defendants are entered as co-sharers. Shri Jaipal Singh died on 24.6.2000 leaving behind Smt. Rajni Singh. Shri Jasraj Singh is the other co-sharer of the Grewal Model Farm. The farm at Chittarpur was developed by owner of land Shri Indraj Singh, late Anmol Ratan Singh Mahal, Shri Jaskaran Singh and late Shri Jaipal Singh. The land is recorded in their names and the names of their near relatives and the family members. Along with Shri Indra Singh his sister Smt. Balrit Kaur Bhattal is also recorded as tenure holder of the land. The defendants denied that the trees were planted by the plaintiff or Shri Jaipal Singh or that he is exclusive owner of these trees. Infact late Shri Anmol Ratan Singh Mahal, the husband of defendant No.1 and father of defendant no.2 used to look after the Grewal Model Farm and all the agricultural operations including plantation of poplar and eucalyptus trees. He had planted all the trees and had looked after them on his behalf and on behalf of other tenure holders and was also doing agricultural operations. It was agreed between the parties that the plaintiff Indraj Singh Grewal will be entitled to 22.5%; Shri Jaskaran Singh will be entitled to 22.5%; Smt. Rajni Singh wife of late Shri Jaipal Singh will be entitled to 22.5% and Shri Baljeet Kaur Bhattal will be entitled to 10% share in the produce of the farm. Late Shri Anmol Ratan Singh Mahal was started living in the farm and was carrying out the entire agricultural operations for which it was agreed that the other co-owners will give him the income from agriculture and trees to the extent of 7 1/2% each every year. In the year 2000 some poplar trees were cut and that in the sale proceeds of these poplar trees and the crops these five shareholders had divided their shares. Shri Anmol Ratan Singh Mahal, however, was not given dues agreed to be paid to him on which he got a set back and had fallen ill.
8. The co-sharers, looking to his condition agreed and promised in the year 2001 that they will pay to him the accrued amount and also agreed to partition the agricultural farm. With this agreement in the end of the year 2001 the land in village Tipperpur and the joining land in village Haiderpur was partitioned on which the 22.5% land equal to 52.8192 acres towards the road flowing from Village Deval to Dariyapur situate on the length towards east-west was given to Smt. Rajni Singh wife of late Jaipal Singh delineated with yellow colour in the map annexed to the objections filed to the application for injunction. The 22.5% share was given to Jaskaran Singh shown in blue colour. He also established a road in his land to connect the portion of his farm with the road from village Deval to Village Dariyapur. 22.5% share given to defendant no.1 shown with red colour fell into share of Anmol Ratan Singh Mahal and 32.5% share equivalent to 76.2294 acres shown with green colour fell in the share of plaintiff and his sister Smt. Balreet Karu Bhattal jointly as they are real brother and sister. The plaintiff sued to look after the interest and accounts of the share of Smt. Balreet Kaur Bhattal. The 22.5% share of plaintiff and 10% share of Smt. Balreet Karu Bhattal was agreed to be taken by them jointly. After this partition in the year 2001 all the parties came into possession of their respective shares.
9. In the year 2002 the co-sharers also entered into partition of Village Jaitpurpur Gaurasiwala in which 22.5% share equal to 11.8309 acres towards north east was given in the share of the plaintiff and the adjoining 22.5% portion towards south fell into share of Shri Anmol Ratan Singh Mahal shown with red colour in the map no.2. Late Shri Anmol Ratan Singh made construction of room in this land, which is existing on the spot. A triangular portion of about 5.258 21 acres = 10% of the land fell into share of Smt. Balreet Kaur Bhattal and the land adjoining to this portion towards west=22.5% delineated with yellow colour fell into share of Smt. Rajni Singh widow of late Shri Jaipal Singh. The south western portion = 22.5% shown with blue colour in the Map No.2 was given to Jaskaran Singh and accordingly in the year 2002 all the co-sharers came into respective possession of their shares. Shri Anmol Ratan Singh Mahal planted poplar trees on his share of land in Village Jaitpur Gaurasiwala according to oral partition. The defendants, however, stated that he plaintiff had planted poplar trees in Village Jaitpur Gaurasiwala on his share and had half the share towards north east of Balreet Kaur Bhattal. On the remaining half of the land there are no trees. Smt. Rajni Singh and Jaskaran Singh also planted some trees of their land and the remaining land was used for cultivation. Shri Jaskaran Singh had sown paddy crop, whereas Smt. Rajni Singh had sown sugarcane crop. After the partition one house towards south of road from Village Deval to Village Dariyapur fell into share of Shri Jaskaran Singh. The other adjoining house at the same place had fallen in the share of Shri Anmol Ratan Singh Mahal, who has to live in the house till his death.
10. The defendants have further stated in the written statement that after the death of Jaipal Singh the land in his share, inherited by Smt. Rajni Singh, mother of Shri Jaipal Singh Smt. Jogendra Kaur and the son of Jaipal Singh Shri Sahmat Singh and Shri Chirag singh and other defendants was entered in the revenue records. This entire portion was used for cultivating the crops. Smt. Rajni Sigh has sold a portion of this land to Shri Sasham Preet Singh, Harvind Singh and Joga Singh in the year 2007-08 and some portion is retained by her. The vendors are cultivating the land purchased by them in the eastern portion of the land. Shri Jaskaran Singh has planted some poplar trees on the western boundary of the road, which is jointly used and has also planted guava trees towards east of the land. Late Shri Anmol Ratan Singh had planted poplar trees in about 24-25 acres of land in his share. On the death of Shri Anmol Ratan Singh Mahal on 16.9.2008 the defendants inherited his share of the land and have become owner of the trees along with their relatives namely Smt. Satender Kaur, Smt. Jogendra Kaur wife of Sardar Gulzar Singh, Gurvender Singh and Gurpreet Singh both sons of Sardar Gulzar Singh. They are all co-owners jointly of the land purchased with which the plaintiff or his sister Smt. Balreet Kaur Bhattal has no interest at all. After the death of her husband the defendant no.1 is looking after the trees and on the remaining portion she has sown paddy and sugarcane crop. She also has tube well on which the electricity connection is in the name of her husband and her mother and with Smt. Satender Kaur with Connection Nos.5402/061280 and 5402/ 2216. She is paying the electricity bill for running the tube well. The defendant no.2 is her son. He is staying in Canada. She had also gone to Canada in June, 2010. When she came back in February, 2011 she came to know that some trees were cut away of the plaintiff on which she had instructed him not to cut the trees, which were planted and are in her share. The defendants further stated in the written statement that the trees planted by her husband have matured and are ready to be cut. When she started cutting the trees in her share planted by her husband in July, 2011 the plaintiff and his friend Shri Jaskaran Singh stopped her and created a law and order situation on which she had informed the District Magistrate and the Sub Divisional Magistrate, Muzaffarnagar. The Sub Divisional Magistrate in order to maintain law and order situation issued notice to Shri Indraj Singh and Jaskaran Singh on which the plaintiff Shri Indra Singh filed objections before the Sub Divisional Magistrate, Jansath on 30.7.2011 and in which he agreed that the parties had partitioned the land in the long time and Shri Anmol Ratan Singh on 19.1.2002 and accordingly each of the parties is in the possession of their respective portion of their land. The Sub Divisional Magistrate after hearing the parties passed an order on 12.8.2011 that since the land has been partitioned according to an agreement between the parties in the year 2001 and the farm has been divided into four portions of which 22.5% is of Smt. Rajni singh; 22 1/2% of Shri Jaskaran Singh; 22 1/2% of Shri Indraj Singh and 10% of Shri Balreet Kaur Bhattal and accordingly each of the parties is free to carry out agricultural operations on the respective portions of the land and also have right to cut the trees on such portions. The plaintiff having lost from the Court of Sub Divisional Magistrate filed the suit to stop the defendants from cutting the trees in their separate portion. Infact the suit is not maintainable and that no decree for permanent injunction or temporary injunction can be passed. The plaintiff can file suit for partition under Section 176 of UPZA & LR Act.
11. In the end the defendant appellants stated that the plaintiff himself has been cutting away the trees regularly. The receipts of the plants purchased by him from Village Kilaraypur Tehsil and Distt. Ludhiana relates to plaintiff's farm in Village Kilaraypur, Punjab in which he keeps cutting the trees every 5 to 6 years and keeps selling them regularly. The receipts do not relate to the trees planted on the farm at Muzaffarnagar.
12. Smt. Gulminder Kaur Mahal, the defendant-appellant has filed a Suit for permanent injunction restraining the defendants from interfering in the separate portion, which she and her son have inherited from their husband. This suit is still pending and in which no interim relief has been granted. Shri Indraj Singh file a writ petition under Art.227 of the Constitution of India. The writ petition was disposed of by an order passed by learned Single Judge consolidating both the suites as follows:-
"Heard learned counsel for the petitioner and learned counsel for respondent no.2.
Learned counsel for the respondent no.2 has got serious objection to consolidation of both the suits i.e. 1017 of 2011 and 772 of 2011. Second suit has been filed by the petitioner and the first suit by respondent nos. 2 and 3. The property in the dispute is same. However, learned counsel for the respondent no.2 state that in one suit pleadings are complete but in the other pleadings are not complete and that petitioner is delaying the disposal of temporary injunction application in suit no.1017 of 2011 filed by the petitioner. These thing have got no concern with the consolidation of the suits. Both the suits are pending before Civil Judge (S.D.) Muzaffarnagar. Accordingly both the suits are consolidated. It is stated that in first suit 5.7.2012 is fixed and in the second suit 23.5.2012 is next date fixed. In the first suit the date is preponed to 23.5.2012. Trial court shall make all efforts to decide temporary injunction application on the next date or as early as possible. Writ petition is disposed of."
13. In Suit No.772 of 2011 filed by Smt. Gulminder Kaur, the defendant appellant, she filed an application that after the order dated 21.5.2012 since the defendants in that suit are not causing any interference in her rights, the application for interim injunction filed by her should be dismissed as not pressed. By an order dated 24.7.2012 the trial court dismissed the application for interim injunction in the suit filed by her being Original Suit No.772 of 2011 and that on 27.11.2012 after hearing learned counsel for the parties, the Court passed the following order:-
"We have heard Shri A.K. Gupta, learned counsel appearing for the defendant-appellants. Shri Ravi Kiran Jain assisted by Shri Nipun Singh appears for the plaintiff respondent.
This first appeal from order arises out of suit for injunction filed by the plaintiff-respondent in which he admitted that the defendants have 22 1/2% share in the land in dispute. He, however, stated that 12000 Popular trees have been planted by the plaintiff with the consent of the other co-sharers and that if the defendants without there being any partition of the land, cut away the trees, which according to the defendants belong to them, the plaintiff will suffer irreparable loss and hardships.
The trial court after hearing the parties has passed an order on 29.8.2012 directing the parties to maintain status quo, and fixed 24.9.2012 for framing of issues.
Prima facie we are of the view that the matter, since it relates to land, in which shares of the members of the family are admitted, can be settled, if the parties agree for mediation.
We explored the possibility of agreement for mediation. After hearing the parties as well as Smt. Gulminder Kaur Mahal-defendant No.1, we find that the matter may be settled, between the parties to the suit, even if all other interested persons are not parties, who are before us.
Taking into consideration the special facts and circumstances of the case, we refer the matter to the Allahabad High Court Mediation and Conciliation Centre, for which both the counsels have agreed. Both the parties will report at the Mediation Centre on 4th December, 2012. The Centre will nominate trained Advocate Mediators, who will make efforts for possible settlement between the parties.
Since the defendant-appellant no.1 is residing in Canada and that defendant appellant no.2 is at present in Canada, and the parties agree that the mediation sessions may not be delayed unreasonably, we request the mediators, who will be appointed by the Mediation Centre, to fix early dates at the convenience of the parties and try to settle the matter as expeditiously as possible. This appeal will be listed on 18th December, 2012, for orders with the report of the Mediation Centre.
The copy of the order be given to learned counsel for the parties today, on payment of usual charges."
14. Smt. Balreet Kaur Bhattal had filed application for impleadment in both the suits, filed Writ-C No.51692 of 2012 challenging the order of the Sub Divisional Magistrate, Jansath, Distt. Muzaffarnagar dated 12.8.2011 on the ground that until there was partition under Section 176 of the UPZA & LR Act, 1951, the Sub Divisional Magistrate did not have any powers to pass orders permitting the cutting of trees. On 9.10.2012 this Court passed following exparte order in the writ petition filed by her:-
"The submission of the learned counsel for the petitioner is that the petitioner as well as private respondents no. 3 to 6 jointly own certain agricultural land regarding which no partition has been carried out nor has any suit under section 176 of the U.P. Zamindari Abolition & Land Reforms Act, 1951 been filed. On an application submitted by the respondent no.3 before the Sub Divisional Magistrate Jansath, District Muzaffernagar, respondent no.2, by the impugned order dated 12.8.2011 the shares of the private parties have been decided by the Sub Divisional Magistrate on the basis of some settlement arrived at between the parties in which the petitioner is not a signatory and permission for cutting the trees has also been granted. It is submitted by the learned counsel for the petitioner that firstly the shares could not have been decided by the Sub Divisional Magistrate as the same could be done only in proceedings under section 176 of the U.P. Zamindari Abolition & Land Reforms Act, 1951. It is also contended that in any case the Sub Divisional Magistrate would not have the authority to grant permission to cut the trees which power vests only in the officials of the Forest Department.
In our view, the matter requires consideration.
Learned Standing Counsel has accepted notice for respondents no.1 and 2.
Issue notice to respondents no.3 to 6 fixing a date immediately after six weeks. Steps to be taken within a week.
All the respondents may file counter affidavit by the next date.
Meanwhile operation of the impugned order dated 12.8.2011 passed by the Sub Divisional Magistrate, Jansath, District Muzaffarnagar, respondent no.2, shall remain stayed."
15. Smt. Balreet Kaur Bhattal instead of making an application for impleadment in this appeal, filed a Special Leave to Appeal (C) (CC) No.2237 of 2012, from the judgment and order dated 27.11.2012, by which the matter was referred for Mediation. On 14.12.2012 the Supreme Court dismissed the special leave petition with following observations:-
"Taken on Board.
Permission to file SLP is granted.
Heard learned counsel for the petitioner and perused the relevant material.
We are not inclined to interfere with the impugned order of the High court. The special leave petition is dismissed particularly in the light of the fact that the High Court is going to hear the parties on 18.12.2012. It is made clear that if the petitioner has any grievance, she is permitted to putforth her claim before the High Court on the said date."
16. The Allahabad High Court Mediation & Conciliation Centre has submitted a report that the mediation sessions were held but that parties could not reach to any settlement and has referred the matter back to the Court on 18.12.2012.
The arguments:-
17. It is submitted by Shri A.K. Gupta that the plaintiff concealed the facts in the plaint in seeking relief of permanent injunction and praying for interim injunction. He did not deliberately implead all the co-sharers of the agricultural land, which has not been partitioned by the Court and is still recorded in the name of all the co-sharers. He named Shri Jaipal Singh as one of the co-sharers, who has since died but did not implead his widow and sons. He also did not implead his real sister Smt. Balreet Kaur Bhattal, who has share in the land. Shri Indraj Singh, the plaintiff sold substantial portion of his share to his mother. She was also not impleaded in the suit and further Shri Indraj Singh was aware that Smt. Rajni Singh had sold a portion of the land in her share to Shri Dashampreet Singh and Shri Harvind Singh both sons of Joga Singh in the year 2007-08, who are cultivating the land. Shri Indraj Singh had also sold the substantial portion of is land to his own mother Smt. Harpreet Kaur wife of late Shri Jaswant Singh by registered sale deed dated 21.10.2009 in Khasra No.8 Ma, 12 Ma, 15, 18 Ma, 19 Ma, 20 Ma, 21 Ma, 22 Ma, 225 Ma, 228 Ma, 234, 243/2 (in 12 khasra plots) of his 6/40 share of an area of 0.202 hect.= 202/504 share delineated and described with boundaries in the map appended to sale deed and other sale deed of the same day dated 21.10.2009 by which he sold an area of 1.215 hect. in Village Haiderpur, once again in Khasra Nos.243/3 from his 6/40 share described in the map appended to the sale deed. Shri Indraj Singh, however, did not impleaded these persons, who are owners of the specific shares in the land and maintained the suit only against the defendant appellants. The suit claiming that the land was not partitioned and was still owner of all the co-sharers seeking permanent injunction against some fo the co-sharers from cutting away the trees was not maintainable for non-joinder of necessary parties.
18. Shri A.K. Gupta further submitted that there is overwhelming material on record that the co-sharers had partitioned the land in the year 2001 and more particularly in the year 2002 and were in possession of their respective portions including the constructed portions built on the land. The co-sharers were not only cultivating the land, some of them including the plaintiff were selling the specific portions of the land, and thus the suit for injunction restraining the defendants alone, who were mostly residing in Canada after the death of late Shri Anmol Ratan Singh is mischievous in nature with misconceived prayers. There is no prohibition in law for the parties to enter into partition, and to act upon it for enjoying their respective shares and cultivating it, cutting the trees, and cutting and selling away the trees in their portions. There was no jointness in the ownership of the trees and cultivation on the land. The suit was filed with the purpose of obtaining injunction, and allegedly for recovering some loan, which is alleged to have been given by her sister Smt. Balreet Kaur Bhattal to late Shri Anmol Ratan Singh Mahal. The written statement was filed by Shri Indraj Singh, the plaintiff before the Sub Divisional Magistrate, in an enquiry caused by him for preventing breach of peace and in which plaintiff had clearly admitted that partition had taken place between the parties, who were enjoying their respective portions for cultivation and for cutting the trees. It appears that later on he became wiser and filed present suit and thereafter made her sister to file application for impleadment challenged the order of the Sub Divisional Magistrate independently in a writ petition, and thereafter to approach the Supreme Court against an order referring the matter to Mediation Centre without seeking impleadment in the writ petition.
19. Shri A.K. Gupta submits that in these circumstances, the order of interim injunction, is an abuse of the process of the Court. The defendant no.1 is widow. Her son is staying in Canada. They have been deprived the usufruct of the property and in the share of the trees planted by her late husband and cultivation. The trial court having noticed that the parties are selling away the specific portion fo the land erred in law in believing that the land was still joint and thus as co-sharer the plaintiff has right to be granted injunction.
20. Shri Ravi Kiran Jain appearing for the plaintiff respondent submits that the agricultural land continues to be jointly recorded in the name of all co-sharers and that until the land is partitioned each co-sharer has right over the land. The defendant cannot cut away the trees against the interest of the plaintiff respondents. The defendants appellants should file a suit for partition and separate possession before she is allowed to cut away the trees. He submits that the plaintiff respondent dos not deny the share of the defendants but that until the trees in the shares are demarcated after partition, should should not be permitted to cut away the trees. Shri Ravi Kiran Jain has also suggested that a receiver be appointed for cutting away the trees. The trees cut under his supervision should be sold by auction and amount deposit until the suit is decided by the trial court.
The discussion
21. We have considered the respective submissions and find that Shri Indraj Singh, the plaintiff has admitted that the land in Village Tipperpur and the adjoining land in Village Jaitpur as well as the land in Village Haiderpur in Pargana Bhumma, Sambhalkhera, Tehsil Jansath Distt. Muzaffarnagar was jointly acquired and on which an agricultural farm in the name of Graval Modern Farm was established. It is also admitted to the parties that the land is still recorded jointly in the name of the co-owners out of which Shri Anmol Ratan Singh and Shri Jaipal Singh have died and the names of their heirs have been mutated, recorded as co-owners. It is also not denied that the entire land has been sued for planting poplar trees and for agricultural operation. The plaintiff, however, denies that any partition has taken place as alleged by the defendants in the life time of Shri Anmol Ratan Singh Mahal and that he had planted the poplar trees, which are standing on his share. He also denies that there has been any partition in a manner in which it is alleged in the written statement demarcating respective portions of the parties and that each one of them is cultivating their shares and have their plantations of trees.
22. In a suit for permanent injunction filed by a co-owner restraining the other co-owner or any other person from enjoying the land for cutting away the trees or for agricultural operations, any relief including an interim injunction cannot be allowed unless all the co-owners are impleaed as party to the suit. In such a suit if a relief is claimed only against one or some of the co-owners, as the interest of all the co-owners is involved, and that plea taken by the defendants for partition cannot be considered, in the absence of the co owners, the suit itself will not maintainable for non-joinder of necessary parties. All the co-owners are necessary parties to a suit as the plaintiff can not appropriate the right for enjoyment of the property only for himself. In the present case though the plaintiff has alleged that he is filing the suit both for himself and for benefit of other co-owners he has not given any reasons as to why they could not join him as plaintiffs or he did not implead them as defendants.
23. We further find that though the relief for partition of agricultural land could be given only by a revenue court, in accordance with the provisions of Section 176 of the UPZA & LR Act, the Sub Divisional Magistrate in order to avoid breach of peace, had invited the parties to file objections. Shri Indraj Singh, the plaintiff respondent did not raise any objection to the jurisdiction of Sub Divisional Magistrate. He filed his reply and appeared before the Sub Divisional Magistrate. He had admitted before the Sub Divisional Magistrate that the parties had partitioned the land between them in the year 2001-02, and were in cultivatory possession of their respective portions. On these admissions, the Sub Divisional Magistrate, in order to prevent the breach of peace, found that in view of the admitted partition, they were entitled to cultivate the land, which was demarcated, and to cut the trees, which are on their respective portions. Smt. Gulminder Kaur, thus has a right to cut the trees on the portion no.3, which had fallen in the share of her husband and on which she is admittedly in possession. The Sub Divisional Magistrate did not cause any partition of the land. He simply found that on the admissions made by the parties regarding the partition dated 14.8.2001, which was signed by the parties before him and was accepted by them, they had a right to enjoy their respective portions.
24. If the plaintiff was aggrieved, he could have himself filed suit for partition under Section 176 of the UPZA & LR Act for recording such partition in the revenue records.
25. We also find that not only Smt. Rajni Singh, the widow of late Shri Jaipal Singh, who was admittedly a co-owner of the property, and was not impleaded, had sold a specific portion of the land, the plaintiff himself had sold specific portions of land delineated in the sale deeds with measurement of boundaries, in favour of his mother. If there was no partition as claimed by the plaintiff, between the parties, Smt. Rajni Singh, or he himself as co-owner could not have exercised the right to sell specific portions of the land. Having sold specific portions of the land giving khasra numbers, the measurement of the boundaries and boundaries in the registered sale deed in favour of his mother, the plaintiff is estopped from alleging that there was no partition and thus the defendants do not have any right to cut the trees, which are planted on their share of land.
26. Learned counsel appearing for the plaintiff respondent has not given any good reasons as to why he (the plaintiff) had sold specific portions of land, which he claims to belong to him to his mother, Smt. Harpreet Kaur, an aged lady vide two sale deeds dated 21.10.2009 area 0.202 hects. and 1.215 hects. respectively. He has not explained his unusual conduct in selling these two parcels of land to his mother.
27. In Cheddi Lal Vs. Chotte Lal, AIR 1951 Alld. 199, a Full Bench of this Court considered the vexed question of the invasion on the right of co-sharer by other co-sharer in respect of joint land. The Court referred to Robert Watson Company Vs. Ram Chandra Dutt, 18 Cal. 10 PC in which Sir Barnes Peacock and Midnapur Zamindari Co. Ltd. Vs. Naresh Narain Roy, AIR (11) 1924 PC 144 by Sir John Edge, had held that in India the lands are held in common by co-sharers and that grant of injunctions will leave the land uncultivated for years making them waste or jungle. The Court also referred the cases from Calcutta and Lahore and cleared the cloud over the law, in holding that the right of the co-sharer in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a co-sharer. A co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers. The question of relief, however, should depend upon the circumstances of each case and that injunction should be granted, when the plaintiff cannot be adequately compensated at the time of partition or that any greater injury would result in refusing the relief.
28. A co-owner cannot restrain another from exercising rights on the common property absolutely and simply on the ground of co-ownership. In Om Prakash v. Chajju Ram, AIR 1992 P&H 219 it was held that where one co-sharer constructed a common lane, thus making the enjoyment by others less convenient, mandatory injunction could be granted for removing the constructions. One co-owner, however, is not entitled for an injunction from exercising his rights, and denying the other co-owner with the beneficial enjoyment of the property. If the plaintiff, however, allows the defendants to the enjoyment of the property, inducing the defendant to believe that he has no objection, acquiescence will bar such a relief to be granted. Similarly when the circumstances are inequitable to grant injunction, the Court would refrain itself from granting such a relief.
29. It is established principle of law that where compensation by payment will be adequate relief, the interim injunction to restrain a co-owner from enjoying the property may not be granted. Section 40 (1) of the Special Relief Act, 1963 accepts this position. The object is to prevent multiplicity of the suits. The temporary injunction in such case may be granted only where the damages would not be able to mitigate the compensation.
30. If there was any jointness of possession and ownership over the land on which the names of all the co-owners are recorded, and there was no partition, as alleged by the plaintiff, the crops sown and harvested by him could not have been appropriated by the plaintiff for himself alone. There are no averments in the plaint nor there is any suggestion that the plaintiff sowing and harvesting crops, on his share is giving the share from the sale proceeds to the other co-owners. On the contrary from the pleadings and the affidavits we prima facie find that all the co-owners were sowing and harvesting crops on their respective portions and were also appropriating sale proceeds to themselves. In the circumstances, we cannot accept the argument that the trees on the land jointly belong to all the co-owners only on the ground that there is no partition recorded in the revenue records.
31. We do not find the suggestions of Shri Ravi Kiran Jain, appearing for plaintiff-respondent, to appoint a receiver and to sell the trees by auction to be reasonable as we have found from the pleadings and the affidavits that the parties had agreed to partition the land, and are in possession of respective portions qualifying the land and also selling specific portions in the last 10 years. The trial court patently fell into error in granting injunction without considering that on the pleading and in view of the sale deeds, which were executed by the plaintiff as well as the heirs of Shri Jaipal Singh. The plaintiff did not establish a prima facie case for grant of injunction. He was in possession and was carrying out his agricultural operations and selling the land in his share all by himself. The balance of convenience was also not in his favour as he will not suffer any hardship, if the defendants are permitted to cut and sell the trees sown and grown in their portion after partition.
32. The first appeal from order is allowed. The order of the Civil Judge (SD), Court No.2, Muzaffarnagar dated 29.8.2012 is set aside.
33. In the circumstances of the case, the trial court is directed to decide the suit, expeditiously. The trial court will fix early dates in the matter and will not grant unnecessary adjournments.
Dt.09.01.2013 SP/