Rajasthan High Court - Jodhpur
Madanlal vs Homesh Panwar & Anr on 8 February, 2017
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Civil Revision Petition No. 120 / 2016
Madanlal s/o Late Shri Kanhaiyalal, b/c Sain, aged 66 years, r/o
Bhookhand Sankhaya 40, 9th E Road, Bakhatsagar, Sardarpura,
Jodhpur.
----Petitioner/Defendant No.1.
Versus
1. Homesh Panwar s/o Late Shri Vijayraj Ji Panwar, b/c Sain, r/o
Bhookhand Sankhaya 40, 9th E Road, Bakhatsagar, Sardarpura,
Jodhpur.
------Plaintiff
2. Jodhpur Nagar Nigam, Jodhpur through Commissioner.
----Defendant No.2
_____________________________________________________
For Petitioner(s) : Mr.S.D.Purohit
For Respondent(s) : Mr.Anirudh Purohit, Mr.Sunil Purohit
_____________________________________________________
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Order 8th February, 2017
1. The petitioner has preferred this revision petition aggrieved by the order dated 18.07.2016, vide which the application filed by the petitioner/defendant No.1 under Order 7 Rule 11 CPC has been rejected.
2. It is contended by counsel for the petitioner that the plaintiff has filed a simpliciter suit for injunction with relation to a joint property and as there is no relief for partition, the simpliciter suit for injunction is not maintainable.
(2 of 6) [CR-120/2016]
3. It is further contended by counsel for the petitioner that the court cannot grant injunction under Section 41(h) of the Specific Relief Act, 1963 when equally efficacious relief can be obtained by any other usual mode of proceeding.
4. In support of his contentions, counsel for the petitioner has placed reliance on Kishan Singh Vs. Sucha Singh, 2008(2) Civil Court Cases 755 (P & H), Bachan Singh Vs. Swaran Singh, (2000) 126 PLR 416 and Chedi Lal & Anr. Vs. Chhotey Lal, AIR 1951 All. 199.
5. Counsel for the plaintiffs/non-petitioners have opposed the revision petition. Their contention is that a simple suit for injunction can be filed and there is no bar in filing such a suit. It is also contended that in all the rulings cited by counsel for the petitioner, there is none which holds that the suit is barred under Order 7 Rule 11 CPC.
6. It is further contended that in the plaint itself, the plaintiff has mentioned that the defendant without obtaining permission from the Jodhpur Development Authority is converting the use of the land from residential to commercial and he is not authorized to make any alteration without the consent of the other co-owners. It is also contended that there is no requirement of filing a suit for partition as the plaintiff is only claiming injunction to restrain the defendant from changing the use of land from residential to commercial without obtaining sanction from the JDA and without seeking permission from the other co-sharers.
7. In support of their contentions, counsel for the respondents have placed reliance on Kamala & Ors. Vs. (3 of 6) [CR-120/2016] K.T.Eshwara SA & Ors., (2008) 12 SCC 661, wherein the Apex court has observed that the contentions raised for rejection of the suit involve various questions, which could not be considered at the stage of Order 7 Rule 11 CPC and thus, held the rejection of the plaint as improper.
8. I have considered the rival contentions of the parties and have also perused Section 41(h) of the Specific Relief Act and Order 7 Rule 11 CPC and the judgments cited by counsel for the parties before the Court.
9. It would be appropriate to first deal with the judgments cited by counsel for the petitioner.
10. Kishan Singh Vs. Sucha Singh (supra) was a case where the suit simpliciter for injunction was filed against the alleged co-sharer, who was in exclusive possession. The Court in that case observed that the plaintiff could assert his right by filing a suit for partition, and a suit for permanent injunction is not maintainable.
11. Bachan Singh Vs. Swaran Singh (supra) was a case, wherein the Court held that 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, unless any act of the person in possession amounts to ouster, prejudicial or adverse to the interest of co-owner out of possession. It was observed that mere making of construction or improvement of the common property does not amount to ouster. The Court further observed that 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 (4 of 6) [CR-120/2016] seek an injunction to prevent diminution of the value or utility of the property. It was further observed that if the acts of co-owner in possession are detrimental to the interest of the other co- owners, then a co-owner out of possession can seek an injunction. Except these eventualities, the remedy of the co-owner out of possession is to seek partition.
12. In Chedi Lal & Anr. Vs. Chhotey Lal (supra), in para 25, it was observed as under:-
"25. As a result of the foregoing discussion, it appears to us that the question of the right of co-sharers 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, whose right in respect of joint land has been invaded by the other co-sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. The conflict in some of the decisions has apparently risen from the confusion of the two distinct matters. While therefore 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 as to what relief should be granted to the plaintiff in the event of invasion of his rights will depend upon the circumstances of each case. The right to the relief for 'demolition and injunction' will be granted or withheld by the Court according as the circumstances established in the case justify. The court may feel persuaded to grant both the reliefs if the evidence establishes that the plaintiff cannot be adequately compensated at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it. On the contrary is material and substantial injury will be caused to the defendant by the granting of the relief, the Court will no doubt be exercising proper discretion in withholding such relief. As has been pointed out in some of the cases, each case will be decided upon its own peculiar facts and it will be left to the Court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies. That the Court in the exercise of its discretion will be guided by considerations of (5 of 6) [CR-120/2016] justice, equity and good conscience cannot be overlooked and it is not possible for the Court to lay down an inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused."
13. From the rulings, on which counsel for the petitioner has placed reliance, it is made out that a person, who is not in possession, cannot file a simpliciter suit for injunction, unless his valuable rights are being infringed, as held in Bachan Singh Vs. Swaran Singh (supra).
14. In none of the rulings cited by counsel for the petitioner, a suit has been rejected under Order 7 Rule 11 CPC. Section 41(h) of the Act only makes a provision as to when injunction cannot be granted. The contention of counsel for the petitioner that in all cases, where a co-sharer files a suit, he has to file a suit for partition, cannot be accepted, because a co- sharer, who is not keen on getting the property partitioned cannot be forced to file a suit for partition and he may simply file a suit for injunction, if his valuable rights are being infringed. Section 41(h) therefore, has no applicability in the present case.
15. Similarly, Order 7 Rule 11 CPC would also have no applicability in the present case, as at the time of deciding an application under Order 7 Rule 11 CPC, only the pleadings of the plaintiff are to be seen. The plaintiff has pleaded that the defendant/co-sharer is trying to convert the residential accommodation into a commercial premises without obtaining permission from the Jodhpur Development Authority. The conversion of his residential building into a commercial building (6 of 6) [CR-120/2016] would cause irreparable loss to the plaintiff/co-sharer.
16. Since, the plaintiff in possession merely wants to restrain the defendant from converting the residential premises, which is still unpartitioned to a commercial premises without obtaining permission from the Jodhpur Development Authority, he cannot be forced to first file a suit for partition, get the property partitioned and then seek injunction, or seek injunction in a suit for partition.
17. In substance, a co-sharer in possession cannot be forced to file a suit for partition for claiming injunction. In the judgments relied upon by the counsel for the petitioner also, the Court has categorized the cases where a simpliciter suit for injunction can be filed without filing a suit for partition. Therefore, the contention of the counsel for the petitioner that the suit is not maintainable under Order 7 Rule 11 CPC cannot be accepted. The court below has therefore, not committed any illegality or irregularity in rejecting the application filed by the petitioner under Order 7 Rule 11 CPC.
18. Consequently, the present revision petition is dismissed. The stay petition also stands disposed.
(PANKAJ BHANDARI)J. Skant/-