Punjab-Haryana High Court
Pritam Singh And Ors. vs Chanan Singh And Ors. on 23 August, 2002
JUDGMENT M.M. Kumar, J.
1. This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenges order dated 29.4.2002 passed by the Additional District Judge, Rupnagar which has reversed the order dated 22.3.2002 of Civil Judge (Jr. Division) refusing the relief of ad interim injunction restraining the defendant-petitioners from raising any further construction on specific portion of the suit property without getting the same partitioned. The Civil Judge in his order dated 22.3.2002 had allowed the defendant-petitioners to raise construction during the pendency of the suit subject to final partition of the suit property. In other words, the prayer of the plaintiff-respondents was declined.
2. The facts which are necessary to put the controversy in its proper perspective may first be noticed. Plaintiff-respondents filed Civil Suit No. 4 of 3.1.2002 seeking permanent injunction restraining the defendant-petitioners from raising any sort of construction, changing the nature of the suit land situated in the area of Village Malakpur, H.B. No. 35, Tehsil and District Rupnagar. Along with the suit, an application was also filed claiming that the plaintiff-respondents being co-sharer in the suit property along with the defendant-petitioners were entitled to temporary injunction restraining the defendant-petitioners from raising any construction over the superior and valuable portion of the suit property. The plaintiff-respondents failed to persuade the Civil Judge to accept their prayer for ad interim injunction. The reasons which prevailed upon the Civil Judge to decline the application of the plaintiff-respondents were that Pritam Kaur plaintiff-respondent No. 3 has already installed a tubewell in a part of the suit land. Therefore, it was thought inequitable to restrain the defendant-petitioners from raising any construction on another portion of the land. Plaintiff-respondent No. 3 Pritam Kaur too has been in possession of specific portion of the suit land. The Civil Judge also referred to the entries in Aks Shajra to conclude that the suit land adjoins the main Ropar-Nangal road. Therefore, on that basis the Civil Judge dismissed the application of the plaintiff-respondents.
3. On appeal, filed against the order dated 22.3.2002 passed by the Civil Judge, the Additional District Judge, Rupnagar was persuaded to reach the conclusion that the construction which is sought to be raised by the defendant-petitioner is in the middle of the front portion of the suit land. They have already raised four walls on the site. It also came to the conclusion that if the construction is permitted to be raised in the valuable portion of the front side that too in the middle of the suit land, then the land cannot be properly utilized by the other co-sharers. Disagreeing with the reasoning given by the Civil Judge that Pritam Kaur plaintiff-respondent No. 3 has also installed a tubewell, the Additional District Judge held that installation of tubewell is natural for cultivation of the suit land, whereas construction on the land for commercial use is entirely different. The Additional District Judge also felt that nature of construction sought to be raised by the defendant-petitioners is such that it would amount to ouster of rights of other co-sharers as they will not be able to utilize the suit property properly. Such a right cannot be allowed to be violated without getting the land partitioned. Accordingly, the plaintiff-respondents gave an undertaking that they would file partition application before the competent authority within one month from the date of that order and in case of their failure, the stay order passed by the Additional District Judge was to become inoperative automatically. Feeling aggrieved against the order passed by the Additional District Judge, the defendant-petitioners have filed the present revision petition.
4. Mr. Atul Lakhanpal, learned counsel for the defendant-petitioners has argued that no injunction can be issued against the defendant-petitioners from raising construction once they are shown to be in exclusive possession of their portions as co-sharers. He has further argued that once the plaintiff-respondents have raised construction on the area which is in their possession, it would not be equitable to restrain the defendant-petitioners from raising any such construction. For the aforementioned proposition, the learned counsel has placed reliance on a judgment of this Court in the case of Bal Kishan v. Ram Singh, (2001-3)127 P.L.R. 677. Learned counsel has further submitted that the defendant-petitioners are ready to file an undertaking that after the partition proceedings are finalised and in case the portion of this land did not fall to their share, then they will demolish the construction.
5. Mr. Pritam Saini, learned counsel for the plaintiff-respondents has submitted that the construction raised by the plaintiff-respondent No. 3 is related to agricultural purposes and the tubewell was constructed after obtaining due consent of the defendant-petitioners. According to the learned counsel a co-sharer cannot be permitted to raise construction so as to change the nature of the land. He has further submitted that the suit land adjoins the main Ropar-Nangal road and allowing construction on such a valuable portion of the land would result into prejudice to the rights of the plaintiff-respondents who are the other co-sharers.
6. After hearing learned counsel for the parties and perusing the impugned order, I am of the considered opinion that the discretion exercised by the Additional District Judge does not suffer from such an illegality or irregularity which would warrant interference of this Court under Section 115 of the Code. On merit also it is well settled by a Full Bench of this Court in Bhartu v. Ram Sarup, 1981 P.L.J. 204 that a co-sharer is always in possession of whole parcel of the land, even if he is not actually in possession. ? The view of the Full Bench in Bhartu's case (supra) can be gathered from paragraph 4 of the judgment which reads as under:-
"(1) A co-owner has an interest in the whole property and also in possession of all even if all but one are actually out of possession.
(2) Possession of joint property by one co-owner, is in the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6) 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.
(7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition."
7. The Supreme Court in Hindustan Petroleum Corpn. Ltd. v. Sriman Narayan and Anr. A.I.R. 2002 S.C. 2598 has held that the object of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated for damages recoverable in the action if the uncertainty was resolved in his favour at the trial. It also held that the balance of convenience should also be determined. The observations of their Lordship read as under:-
"7. It is elementary that grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the court. While exercising the discretion the court normally applies the following tests:
(i) whether the plaintiff has a prima facie case:
(ii) whether the balance of convenience is in favour of the plaintiff; and
(iii) Whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.
8. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged viola-
tion are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience" lies. (See Gujarat Bottling Co. Ltd. v. Coca Cola Co. a.i.r. 1995 s.c. 2372)" 8. In the case of Dorab Cawasji Warden v. Coomi Sorab Warden, (1990)2 S.C.C. 117, the Supreme Court has given the following guidelines to be borne in mind while deciding the prayer for interlocutory mandatory injunction:
"The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief.
Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as a prerequisite for the grant of refusal of such injunctions would be a sound exercise of a judicial discretion."
9. If the aforementioned principles are applied to the facts of the present case, then it becomes apparent that the plaintiff-respondents are entitled as co-sharers to protect the suit land to ensure that the nature of the suit land is not changed by another co-sharer. Secondly, the proceedings for partition have been initiated and the defendant-petitioners would not suffer any prejudice because it would soon be clear which of the co-sharer would be entitled to occupy and possess which portion of the land. Thirdly, the plaintiff-respondents may suffer an irreparable loss which would not be compensated in terms of payment of some money because once the construction of commercial nature is raised, then the value of the land would be different and the matter would be further complicated. Therefore, it will not be proper to permit the defendant-petitioner to raise construction or continue with the same.
10. The argument of the counsel for the defendant-petitioners based on Bal Kishan's case (supra) would not require any detailed examination because this Court in Bal Kishan 's case (supra) has taken the view that a co-sharer can 'transfer by sale the property to the extent of his share even by way of specific Khasra numbers. The vendees would become co-sharer to that extent. But it would still be subject to partition. It has further been held that a co-sharer in possession of a specific khasra number can ask for injunction against another co-sharer who is not in possession restraining the latter from resorting to force and ousting him. Therefore, there is World of difference between the facts of that case and those of the present case. I am also not inclined to accept the offer of the defendant-petitioners seeking permission to raise construction and demolish the same later on after the partition because such a course would result into unnecessary complications even in partition proceedings. Therefore, both the contentions raised by learned counsel for the defendant-petitioners are liable to be rejected.
11. For the reasons recorded above, this revision petition fails and the same is dismissed. However, any observation made in this order shall not be construed as an expression of opinion on merits of the controversy raised in the suit. The Civil Judge is directed to dispose of the suit expeditiously preferably within one year from the date of receipt of certified copy of this order.