Punjab-Haryana High Court
Satish Chander Sethi vs Chuni Lal Shyam Sunder on 20 September, 1995
Equivalent citations: (1995)111PLR685
JUDGMENT N.K. Kapoor, J.
1. This revision petition is against the order of the Additional District Judge dated 14.1.1995 whereby the interim injunction granted by the trial Court has been vacated.
2. Plaintiff filed a suit for permanent injunction restraining the defendant from raising any construction over the property in dispute and by way of interim injunction prayed that the defendant be restrained from changing the nature of the property or raising any construction during the pendency of the suit.
3. The application was contested by the other party on the ground that applicant is not the owner of this property in dispute. According to the defence Prithvi Raj Sethi executed a will and all his sons got separate share in the property in dispute on the basis of will executed by Prithvi Raj Sethi. According to the defendant, the portion shown red in the map was under the tenancy of M/s. Chunni Lal Shyam Sunder, through Shyam Sunder Proprietor, which has now been purchased from one of the owners, namely, Subhash Chander Sethi vide two sale deeds dated 20.9.1994 and 26.9.1994.
4. Trial Court on perusal of the averments made by the parties came to the conclusion that plaintiff has 1/3rd share in the Property in dispute and similarly his brothers Ravinder Nath Sethi and Satish Chander Sethi too have 1/3rd share each in the property in dispute and so the sale made by Subhash Chander Sethi can be termed as a sale of his share in the joint property. Holding so, the Court restrained the respondent from raising any construction over the suit property without getting it partitioned by metes and bounds.
5. Before the appellate Court, it was argued by the learned counsel for the appellant that he purchased the area which was under his tenancy from Subhash Chander Sethi, one of the co-sharers for a valuable consideration vide two sale deeds dated 20.9.1994 and 26.9.1994. The area sold by Subhash Chander Sethi does not exceed his entitlement. This way, the appellant has become owner in possession on account of these sale deeds. It is precisely for this reason that he has made statement to the effect that any construction/alteration made by him would be at his own risk and he would not claim any damages even if this particular property goes out of his possession at the time of partition. The lower appellate Court found substance in this plea of the appellant and so ordered to vacate the interim injunction granted by the trial Court.
6. It has been argued by the learned counsel for the petitioner that the lower appellate Court has erred in law in reversing the well considered order of the trial Court and this way has acted illegally and committed material irregularity. According to the counsel, discretion exercised by the trial Court cannot be interfered by the appellate Court unless the same is perverse. In the present case, since admittedly there has been no partition of the joint property, the plaintiff is well within his right to get a restrain order preventing the defendant from raising any fresh or further construction upon the joint property. A number of judgments have also been cited in support of the plea that Co-sharer has no right to raise any construction in respect of the joint property till the same is partitioned and has fallen to his share exclusively. Merely, for the reason that respondent is in exclusive possession of a portion of the joint property could hardly be construed a factor entitling him to raise construction.
7. Counsel for the respondent on the other hand argued that even as per the case of the petitioner the property in dispute has fallen to the share of three brothers, namely, Subash Chander Sethi, Ravinder Nath Sethi and Satish Chander Sethi. Total area approximately measures 391 Sq. yards. This way, Subhash Chander Sethi, predecessor-in-interest of the present respondent was entitled to approximately 130 Sq. Yards of land. Examined so, the two sale deeds executed by him in all measures 99 Sq. Yards and that too in respect of the property which was already in possession of the respondent as tenant and so any sale made by one of the co-sharers is valid subject to any adjustment at the time of partition of the suit property. Since the respondents has already given an undertaking that he would not claim any damages or compensation for raising any further construction upon the exclusive portion which is in his occupation, the lower appellate Court rightly vacated the interim injunction granted by the trial Court which is not only just but appropriate in the circumstances of the case. Otherwise too, the present suit is only for injunction and so the remedy sought against respondent who is also a co-sharer is wholly mis-conceived. Support was sought from the judgments of this Court which will be briefly noticed in the later part of the judgment.
8. Broad facts which have come on record are that on the death of Dev Raj Sethi, his brother Prithvi Raj Sethi succeeded to his estate and on the basis of will the property has now fallen to the share of Subhash Chander Sethi Ravinder Nath Sethi and Satish Chander Sethi. This being contested by the counsel for the petitioner. But that is the matter which the Court will dilate upon while examining their rights in the light of the will set up or their right to succeed in terms of Hindu Succession Act. In any case, this precise matter is not in dispute in the present suit. Presently, the sole grievance made by the petitioner is that respondent despite having purchased some area from the joint holding from one of the co-sharer. Subhash Chander Sethi, does not entitle him to raise any construction or further construction upon the property till the same is partitioned. For this, the primary reliance has been placed upon the decision in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, A.I.R. 1961 Punjab 528 (DB), Bhartu v. Ram Sarup, 1981 P.L.J. 204 (F.B.) and Om Parkash and Ors. v. Chhaju Ram, (1992-2)102 P.L.R. 75. On the basis of the aforesaid judicial pronouncements, it has been contended by the counsel for the petitioner that a co-sharer has no right to change the nature of the property till the property is partitioned i.e. till there is partition between the parties each one of the owner is deemed to be an owner in each and every parcel of the land and if examined so the respondent cannot raise any construction upon the property. Counsel for the respondent, however, argued that there cannot be any bar either in law or in equity restraining a party from raising construction over a portion which is in his exclusive possession. At best such a party can be directed to remove the construction in case ultimately the part in his occupation falls to the share of the other. In the instant case, admittedly, the property in disputes is in occupation of the respondent as tenant at will since during the life time of Dev Raj Sethi and has now been purchased by the respondent vide two registered sale deeds. The petitioner has not challenged the sale deeds nor alleged that Subhash Chander Sethi, predecessor-in-interest of the present respondent had no right to dispose of the property or that the property sold by him was in excess of his share.
In the absence of such a pleading the necessary inference would be that Subhash Chander Sethi is one of the co-sharers and has a right to dispose of the property to the extent of his share. This way, the respondent is proved to be the owner to the extent of area purchased by him vide sale deeds dated 20.9.1994 and 26.9.1994. There is no statutory law governing the relationship among co-sharers inter se about the common property. Thus, the matter is to be regulated by the rules of justice, equity and good conscious. While considering a question of injunction each case is to be decided upon its peculiar facts. It is always for the Court to exercise a judicial discretion in view of all the facts and circumstances of each particular case and to find out on which side the balance of convenience lies and such like other things. Needless to emphasise when a property is owned by co-sharer, each co-sharer is entitled to make use of the property in a proper manner. Division Bench judgment in Sant Ram Nagina Ram's case (supra) dilated upon the rights and liabilities of the co-owners and held that where co-owner is in possession of separate parcel under an arrangement consented to by the other co-owner it is not open to anybody to disturb the arrangement without the consent of others except by filing a suit for partition. Even the full Bench judgment in Bhartu's case (supra) recognise the rights of a transferee from a co-owner in the light of Section 44 of the Transfer of Property Act. In Jiwan Singh and Ors. v. R. Kant and Anr., 1985 P.L.J. 193 the Court was considering as to whether a co-sharer in exclusive possession of the site has a right to raise construction upon the land and held that raising of construction upon the disputed land could not be said to cause any injury as rights of other co-sharers stand protected by making suitable adjustment at the time of partition.
The Court sought support from the Division Bench in Sukh Dev v. Parsi and Ors. A. I. R. 1940 Lahore 473 as well as from Pishora Singh v. Smt. Lajo Bai etc., 1974(SIC) R.L.R. 644. In fact, on perusal of the judgment cited by the learned counsel for the petitioner as well as by the respondent when closely examined it becomes clear that each case has been decided in view of the peculiar facts of the case alone. Thus, whereas the authorities are consistent that each co-sharer has a right in each parcel of land till it is partitioned have all the same held that a co-sharer in exclusive possession has a right to maintain it and enjoy the property till the same is partitioned by metes and bounds.
9. Present case has peculiar facts. Each one of the three owners were in possession of separate portions and has been enjoying its profits though the property has not been partitioned yet. It is precisely for this reason that one of the owners has sold the property in his exclusively possession to the respondent by two sale deeds. Examined thus, any such person who come in the foot step of a co-sharer has a right to enjoy the property which is in his possession till it is partitioned which will also include, to effect all necessary improvements, especially when the other party does not stand to lose in view of the specific undertaking given by the party.
10. The matter can be examined from another angle also. It is not the case of the petitioner that he is likely to suffer any damages in case the respondent is not injancted from raising the construction. Thus, in the totality of the circumstances, I am of the view that petitioner is not likely to suffer even if the respondent is permitted to raise construction or any further construction over the area which is in his exclusive possession.
11. As a last resort the counsel for the petitioner argued that the lower appellate Court had no jurisdiction to vary the order passed by the trial Court. I find this argument too to be devoid of any substance. In fact, the trial Court did not examine the matter in the light of the reply filed by the respondent or even the case pleaded by the Plaintiff. Perhaps for this very reason lower appellate Court somewhat dilated upon the wills set up by the petitioner and thereafter prima facie came to the conclusion that Subhash Chander Sethi had some interest in the suit property and so transferred the same by means of sale deeds. In any case, these are the matters which the Court will examine on the basis of evidence which is yet to be led.
12. Thus, finding no merit in the revision petition, the same is dismissed.