Allahabad High Court
Phool Kumar vs Shyam Singh And 17 Others on 5 January, 2023
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A. F . R. Court No. - 37 Case :- MATTERS UNDER ARTICLE 227 No. - 11228 of 2022 Petitioner :- Phool Kumar Respondent :- Shyam Singh And 17 Others Counsel for Petitioner :- Aditya Kumar Singh,Nipun Singh Counsel for Respondent :- Syed Ali Imam,Syed Ali Imam Hon'ble Ajit Kumar,J.
1. Heard Sri Nipun Singh, learned counsel for the petitioner and Shri Syed Ali Imam, learned counsel appearing for the respondents.
2. Petitioner before this Court is the plaintiff in the suit instituted for permanent prohibitory injunction being O.S. No. 106 of 2020. In the suit, he moved a temporary injunction application being paper no. 6C along with an affidavit. After the written statement was filed and so also the objection to the pending 6C application by the defendant-respondents, the said application was finally granted by the trial court in favour of the petitioner with a direction to the parties to maintain status quo in respect of the suit property vide order dated 16.3.2021.
3. However, upon a miscellaneous appeal being filed under Order XLIII Rule 1(r) by the defendant-respondents, the said appeal came to be allowed by the District Judge, Gautam Buddha Nagar vide order dated 24.11.2022 setting aside the order of the status quo passed by the trial court.
4. The petitioner pleads that even in case no partition of the suit property has taken place in metes and bounds amongst co-sharers, the Court in order to protect the suit property and from being damaged by raising any construction in any manner or demolition exercise, direct the parties to maintain status quo. Reliance has been placed upon various judgements of this Court : Awadh Narain v. Additional District Judge-IVth, Jaunpur and others; 2001 ALLJ 2551, Radhay Shyam and other v. Uma Shankar and others; 1997 ALLCJ 9, Ram Prasad Tiwari v. Shakur Tiwari, Manu / U.P. / 0282/1964 (2003) 5 SCC page 150, T, Lakshmi Pati and others v. T. Reddy and others and Girdhari Lal v. Ram Lal; SCC Online J & K 693 : AIR 2019 J & K Page 1.
5. Learned counsel for the petitioner submits that it is because the defendant-respondents started raising construction upon a joint land that the necessity arose to institute the suit for permanent injunction. He submits that the plaintiff would have instituted the suit for partition, but he instituted the suit for permanent injunction, instead to ward off an eminent danger of a part of land being appropriated by a co-sharer.
6. Per contra, it is argued by the learned counsel appearing for the contesting respondents that the petitioner having admitted the property to be the joint property, the suit for injunction simpliciter was not maintainable and the proper cause for the plaintiff was to institute suit for partition in which he would have claimed injunction also. It is submitted that no injunction can be granted against another co-sharer because possession of one is possession of all the co-sharers in equal measure and any injunction order if passed would amount to direct interference in the enjoyment of the property by the other co-sharers.
7. Learned counsel for the respondent has relied upon the judgement of this Court in the case of Virendra Kumar v. Additional District Judge, Kannauj and others; 2014 (3) Current Civil Cases, page 43, Full Bench of this Court in the case of Chhedi Lal v. Chhote Lal, AIR 1951 ALL 199 and a judgement of Madras High Court in the case of K.P.M. Aboobucker v. K. Kunhamoo and others; 1958 AIR Madras 287.
8. Before I proceed to deal with the rival submissions made by the respective parties, it is necessary to refer to certain basic facts pleaded in the plaint and in the written statement filed by the respondents. The suit property is relating to khasra/plot no. 112, in which the heirs except one Kripal from the branch of Kanhaiya Lal (the second son of Udai Singh) are impleaded as defendant first set and heirs from the branch of Natthu Singh (the first son of Udai Singh) and one Kripal son of Kanhaiya Lal have been impleaded as defendant second set. In the plaint case while seeking a decree of permanent prohibitory injunction, a pedigree is given of all the parties to the suit and the common ancestor being Uday Singh. The plaintiff-petitioner is also the son of Kanhaiya Lal.
9. The suit property is stated to have devolved upon the heirs of the Nathu Singh and Kanhaiya Lal in equal measure i.e. 1/2 share. The dispute arose after the acquisition of an area measuring 1.138 hectares out of total area 1.846 hectares from plot no. 112 by the State for New Okhla Development Authority (NOIDA) and thus only 0.7080 hectares land was left with the parties. It is stated vide paragraph-8, that parties to the suit are jointly enjoying the property measuring 0.7080 hectares of plot no. 112 which is now a minjumla number i.e. 112m.
10. Now the grievance raised is that the defendants first set started deliberately construction activity and thereby taking possession of a specific piece of land in the remaining area of 0.7080 hectares of plot no. 112m. The petitioner, therefore, has pleaded that in the absence of any partition on such a unilateral act on the part of the respondents to change the nature of the land on spot and to take possession of a particular piece of that land by raising constructions was not permissible and hence the suit.
11. When the suit was instituted, the trial court considering the urgency granted injunction order of status quo. The defendants thereafter appeared in the suit and filed written statement. In the written statement, it has been pleaded that the defendants were entitled to 1/2 share in the land and of which mutual partition had taken place some 30 years ago by way of family arrangement and ever since then the parties had made permanent construction of their respective houses and were in possession thereof. It is stated vide-paragraph-6 of the written statement that every share holder had got separate share and had fortified his land falling in his share. But what is interesting to note is that the area in plot no. 112m is being disputed vide para-9 and the defendants seem to be claiming larger area than what exactly stated in the plaint case. The pleadings of both the parties if are tested on the revenue records, I find that in plot no. 112 minjumla the total area shown is 0.7080 hectares in which names of the parties have continued in the revenue record as on 1428 fasli and the New Okhla Development Authority is also shown to be in possession of plot no. 112 minjumla 1.1380 hectares. The pleadings in paragraph-7 of the plaint show total area to be 1.846 hectares as against the area shown in plot no. 112m to be 1.1380 hectares. Nowhere it is pleaded either in the plaint or in the written statement as to what is the exact total area of plot no. 112m. If the parties had agreed to the mutual understanding for family arrangement preciously at some point of time then at least there should not have been dispute regarding the area that was left with the tenure holders after the part of the land stood acquired for the New Okhla Development Authority.
12. In view of the above, prima facie it appears that no partition in metes and bounds has taken place. However, it would be a matter of evidence when the suit is tried. The raising of construction upon a joint land in the absence of partition, would certainly be disturbing the nature of the suit land and, therefore, with this plea, the plaintiff sought injunction in the suit.
13. This Court as early as in the year 1950 had already held that ordinarily an injunction should not be granted to a co-owner against other co-owner.
14. The Full Bench decision in the case of Chhedi Lal (supra) delivered on 16.11.1950 has not been overruled till date. The Full Bench held that while it was not an absolute rule to deny injunction to one co-owner against another co-owner but it can be granted when an exclusively co-owner uses a unpartioned property to the exclusion of right of others co-sharers. In other words, the Full Bench accepted right enjoyment of property by co-sharers inter se, i.e. an interest and right of a co-sharer in a property with those others is absolute, but this rightly stands qualified by the interest of other co-owners. The Full Bench referred to the judgement of the Judicial Committee in Robert Watson and Co. v. Ram Chand Dutt and others; (1989-90) L.R. 17 I.A. 110, which runs as under :
"It appears to their Lordships that, in a case like the present, an injunction is not the proper remedy. In India a large proportion of the lands, including many very large estates, is held in un- divided shares, and if one shareholder can restrain another from cultivating a portion of the estate in a proper and husbandlike manner, the whole estate may, by means of cross-injunctions, have to remain altogether without cultivation until all the shareholders can agree upon a mode of cultivation to be adopted, or until a partition by metes and bounds can be effected-a work which, in ordinary course, in large estates would probably occupy & period including many seasons. In such a case, in a climate like that of India, land which had been brought into cultivation would probably become waste or jungle, and greatly deteriorated in value. In Bengal the courts of justice, in cases where no specific rule exists, are to act according to justice, equity and good conscience, and if, in a case of shareholders holding lands in common, it should be found that one shareholder is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his work, or to allow any other shareholder to appropriate to himself the fruits of the other's labour or capital."
15. The Bench also quoted the observations made in the case of Midnapur Zamindary Company Limited v. Naresh Narayan Roy and others; (1923-24) L.R. 51 I.A. 293 :
"Where lands in India are so held in common by co-sharers, each co-sharer is entitled to cultivate in his own interests in a proper and husband like manner any part of the lands which is not being cultivated by another of his co-sharers, but he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a co- sharer is not an ouster of his co-sharers from their proprietary rights as co-sharers in the lands. When co-sharers cannot agree how any lands held by them in common may be used, the remedy of any co-sharer who objects to the exclusive use by another co-sharer of lands held in common is to obtain a partition of the lands. No co-sharer can as against his co-sharers, obtain any jote right, a right of permanent occupancy, in the lands held in common nor can he create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them."
14. Referring to the judgment of Mahmood, J in Paras Ram v. Sherjit (1887) ILR 9 All 661, the Full Bench observed :
"The cases of the Allahabad High Court on the point are far more numerous. Paras Ram v. Sherjit (1887) ILR 9 All 661 is a decision by Mahmood, J. in a case where a co-owner sought demolition of a building constructed by a joint owner in spite of his protest. The learned Judge observed that as a pure question of law as distinguished from the rules of equity the plaintiffs may be entitled to the decree but courts in India exercise the combined jurisdiction of law and equity and cannot disregard equitable doctrines in enforcing remedies. He distinguished cases in which a building is erected by a rank trespasser upon a land of another and cases in which the building is erected by a joint proprietor on joint land without the permission of his joint owners or in spite of their protest."
15. On the question of demolition of structure if raised upon a joint land by a co-sharer with the consent of the other co-sharers, the Full Bench first referred to the judgment in Lala Bishwambhar Lal v. Raja Ram (1869) 3 Beng. L.R. Appendix 67 and then Full Bench judgment of 5 Judges in Shadi v. Anup Singh (1890) ILR 12 All 430, and observed thus :
"Sir Barnes Peacock in Lala Bishwambhar Lal v. Raja Ram (1869) 3 Beng. L.R. Appendix 67 and concludes that when a joint owner of land, without obtaining the permission of his co-owners, builds upon such land, such buildings should not be demolished at the instance of such co-owners, unless they prove that the action of their joint owner in building upon joint land has caused them a material and substantial injury such as cannot be remedied by partition of the joint land. This case was considered by a Full Bench of five Judges including Mahmood, J. in Shadi v. Anup Singh (1890) ILR 12 All 430. The suit was brought for an injunction within three or four days of the defendant commencing a construction upon joint land. The defendant asserted exclusive right to the land. The plaintiff obtained an interim injunction but the District Judge on appeal, in view of the ruling in Paras Ram (supra), went into the question as to whether the plaintiff could be compensated by the defendant at partition. He found that the defendant was building upon land which was in excess of the share which would come to him on partition and the plaintiff could not therefore, be adequately compensated. Sir John Edge, C.J., held that the District Judge was wrong in going into the question whether the excess land had been appropriated and that on the finding of fact given by him the injunction should have been granted. It is obvious from a reading of the judgment in Paras Ram (supra) that it did not justify an investigation into the question whether more land than belonged to the co-sharer was appropriated. The learned Chief Justice observed that the defendant, instead of going to the partition court, proceeded to appropriate to himself lands in which each of his co-sharers had an interest and thus he proposed to exclude them from all use and enjoyment of a portion of common land. He went on to say. "We need not in this case consider" what a civil court should do if the defendant has erected "at great expense buildings which a court of equity might hesitate to order him to pull down." This observation clearly saves the power of the court under section 55 of the Specific Relief Act as a court of equity to regulate its discretion in accordance with the provisions of that section in granting or withholding injunction."
16. The Full Bench then proceeded to further refer two decisions of Division Bench of this Court in the case of Ram Lal v. Jagan Nath; 1950 AWR 336 and Lala Sheo Nath v. Lala Shiam Behari in Second Appeal No. 445 of 1942, decided on 23rd December, 1948.
"So far we have referred to the decisions of the Allahabad High Court before the amalgamation but two cases of the new Court after the amalgamation need to be noticed. One of these is reported in Ram Lal v. Jagan Nath 1950 AWR 336 and is a decision by the present Chief Justice. The other is a Bench decision, unreported, in Lala Sheo Nath v. Lala Shiam Behari in Second Appeal No. 445 of 1942, decided on 23rd December, 1948 by the present Chief Justice sitting with our brother Chandiramani, J. In the former case the learned Chief Justice enunciated the principle that a co-sharer in exclusive possession of joint land is not entitled to so can change the character of possession as to effect a complete ouster of the other co-sharers. By adding more constructions to those already existing a co-sharer cannot be said to change the nature of his possession or putting the land to use for which it was not meant and the other co-sharers are not entitled to have the constructions removed. Such cases are to be decided on a balance of convenience and the courts have to see whether the acts complained of are such that they were detrimental to the interest of the co-sharers and some thing to which they had not already acquiesced before. The learned Chief Justice also refers to a large number, of Allahabad decisions and to the unreported case. This view is in full accord with the older Avadh decisions to which we have referred."
17. Then having discussed the law as above Full Bench finally held as under :
"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 co-sharer, whose right in respect of joint land has been a 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 distinct matters. entitled to object to While therefore a co-sharer is 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 the 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 plain till 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 if 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 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 injunction should be granted or refused."
18. In view of, the above exposition of principle of law on grant of injunction to a co-sharer, entire discretion to grant injunction to other co-sharer is held to be dependant upon the facts of each case and the testing point is, as to whether one co-sharer is trying to appropriate unpartitioned land by raising construction to the disadvantage of the other co-sharer.
19. In the case of Sant Ram Nagina Ram (supra), Punjab and Haryana High Court held that in the absence of any suit for partition in respect to joint holding while it is true that one co-sharer cannot be permitted to usurp the best piece of land without the consent of the other co-sharer. The Court summarized the legal proposition regarding joint possession of the property vide paragraph-14 thus :
"14. The Weight of the authorities and the principles which have been discussed propositions:
(1) A co-owner has an interest in the whole property and also in every parcel of it.
(2) Possession of the joint property 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 de- nies that of the other (5) Passage of time does not extinguish the right of 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 to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition.
(8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself.
(9) Where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered."
20. In the case of Awadh Narain (supra), this Court had held that if one of the co-sharers intended to raise construction without there being any partition between the co-sharers in metes and bounds, i.e. demarcating exclusively their rights shares in the property, then injunction should not be denied to a co-sharer against the other merely on a premise that construction would be raised at the risk of the person concerned and it would be pulled down at the time the decree is passed. The Court, therefore, held that if any co-sharer is raising construction on an undivided and unpartioned land, he can be injuncted from doing so.
21. In the case of Radhey Shyam (supra), the Court referred to the judgment of Justice Watch H AIR 1960 ALL 322, that injunction cannot be granted against a co-sharer for a wrongful use of a joint land so the issue decided by the Division Bench was that the joint owner had no right to deal with the joint property without consent of the other joint owner. In turn, the learned Judge relied upon a Division Bench of this Court, ILR 18 ALL 115 and then the Court referred to the judgement of the Punjab & Haryana High Court (supra).
22. In the case of T. Lakshmipathi & others (supra), it was held that one co-owner cannot be permitted take exclusive possession of the property nor can be permitted to commit waste or do illegitimate use of a joint property. A right of the co-sharer to enjoy the property jointly and exclusively has been recognized and to that extent right to protect possession has also been recognized. The interest in the property of one stands fortified by another co-sharer and to that extent nobody can be permitted to take exclusive possession of a particular area by way of illegitimate use thereof or may be changing the nature of the land.
23. In this above case, the controversy had arisen from a decree passed by the Court for eviction under the ANDHRA PRADESH BUILDINGS (LEASE, RENT AND. EVICTION) CONTROL ACT, 1960. The rent controller in that case had directed for eviction of the tenant namely respondent nos. 2 and 3. In the SLP and hence the persons inducted to be in possession were held to be liable for eviction. The appeal was dismissed against the said decree by the Principal Senior Civil Judge affirming the order of the rent controller. In the revision that was filed before the High Court, though it got wrongly recorded as unregistered sale deed in favour of applicant nos. 3 to 5 in the SLP and then applicant nos. 1 and 2 and so there was no effect of transferring title to that, but the counsel appearing for the respective parties agreed before the Supreme Court that those sale deeds were registered one. Thus, it was pleaded before the High Court that the appellant being transferree in possesion by virtue of the sale deed also acquired status of the co-owner and so they could not be the tenant of respondent no. 1 who was just one of the other co-owners and so it was also pleaded that the landlord and tenant relationship was found fundamentally misconceived and the suit deserved to be dismissed. It is in that background that a plea was taken before the High Court and the Supreme Court that remedy of a co-owner was to file a suit for partition against another co-owner in possession.
24. The rival submissions before the Court in the above case where :
"A. If the appellants were held to be co-owners in possession of the property, so the suit for eviction would not lie; and on behalf of the decree holder:
B. Since appellants were inducted by the tenant in the suit property without his consent, they deserved eviction."
25. It is in this above background of legal plea that question in that case was considered about the injunction inter se parties. Vide paragraph-25 held thus :
"In the facts and circumstances of the case, no defence or shelter is available to the appellants behind the plea that they have acquired interest of some of the co-owners. The law as to co-owners is well settled. Where any property is held by several co-owners, each co-owner has interest in every inch of the common property, but his interest is qualified and limited by similar interest of the other co- owners. One co-owner cannot take exclusive possession of the property nor commit an act of waste, ouster or illegitimate use, and if he does so he may be restrained by an injunction. A co-owner may, by an arrangement, expressed or implied, with his other co-owners, possess and enjoy any property exclusively. Such a co-owner can also protect his possession against the other co-owners and if he is dispossessed by the latter, he can recover exclusive possession. (See Jahuri Sah & Ors. v. Dwarika Prasad Jhunjhunwala & Ors., (1966) Supp SCR 280). It is beyond any controversy that on the death of late P. Narayana Reddy, his rights devolved upon the several heirs including respondent no.1. The respondent no.1 is the only male person in the body of the co-owners, all others being women. It may be for this reason, or otherwise, that the respondent no.1 was in possession of the property, through tenants, realizing the rent peacefully and with the consent, expressed or implied, of other co- heirs of late P. Nithyananda Reddy. So far as the respondents no.2 and 3 are concerned, by operation of Section 116 of the Evidence Act, they were estopped from challenging or denying the ownership of the respondent no.1 and his rights in the tenancy premises. As held in Vasudeo v. Balkishan, (2002) 2 SCC 50, the rule of estoppel between landlord and tenant continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord. The estoppel would cease to operate only on the tenant openly restoring possession by surrender to the landlord. Neither the respondents no. 2 and 3 nor their successors in interest or the persons claiming under them could have denied the title of the respondent no.1 during the continuance of the tenancy and even thereafter unless they had restored possession over the tenancy premises to the respondent No.1. Looking at the status of the appellants whether as co-owners or as persons inducted in possession by the tenants they have no legs to stand on. If other co-owners could not have dispossessed the respondent no.1 or demolished the property without the consent of respondent no. 1, it is difficult to conceive how their transferees could have demolished the tenancy premises and raised their own construction over the land on which the tenancy premises stood earlier."
26. In the case of Girdhari Lal (supra), the Court was faced with the legal issue as to whether a co-sharer can seek injunction raising other co-sharer from using joint property or raising construction thereon without seeking relief of partition. The Court after referring to the facts and discussing various judgement has referred to the judgement in the case of Abhai Singh v. Gyan Singh 1971 JKLR page 326 in which the Court had observed that one co-sharer cannot be permitted to raise construction upon a joint land without the consent of other may be such a construction may not cause direct loss to other joint owners. The learned Judge also referred to the judgement of the Rajasthan High Court in Chagan Lal v. State Of Rajasthan: 2022 Latest Caselaw 9493 Raj and also Division Bench of the Punjab and Haryana in Sant Ram Nagina Ram v. Daya Ram Nagina Ram and others; AIR 1961 P H 528. The Court thus ultimately held that if the property was found to be a joint property and that encroachment was being made upon the defendants then the trial court ought to have decreed the suit for injunction.
27. Considering the judgement in the aforesaid cases, while I find there to be no dispute that where any property is held by several co-owners, each co-owner has interest in every part of the property, but such an interest is qualified by similar interest of other co-owners, and therefore, to that extent, no damage or waste to the property or illegitimate use of the property can be permitted by one of the co-owner to the disadvantage of other co-owners.
28. A co-ordinate Bench of this Court in the case of Virendra Kumar (supra) was confronted with this law point as to whether suit simpliciter for permanent injunction would be maintainable and entertainable if instituted by one co-sharer against the other co-sharer and the interim injunction in that case was granted by the trial court to maintain status quo. The order of the trial court was set aside by the Court in appeal and hence the co-sharer plaintiff came to the High Court. The controversy in that case was that though the property was joint but the one brother had sold out a part of the property for consideration of Rs. 40,000/- in favour of the respondent nos. 2 and 3 and so the grievance was that such transfer of the property by sale without there being partition thereof was not permissible. It also transpired that in the said case that no suit was filed questioning the sale deed and, therefore, the purchaser also claimed to be a co-sharer. The Court therefore held that without a suit for partition injunction could not have been granted, relying upon a judgement of the Supreme Court in the case of Kochkunju Nair v. Koshy Alexander and others; AIR 1999 SC 2272. Supreme Court in the case of Kochkunju Nair (supra) was dealing with a right of Kudikidappukaran claimed by one of the co-owner. Kudikidappukaran is a right to build dwelling house. Interpreting the rights of the co-owners in respect of the joint property vide paragraph-9, 10 & 11, the Court had held thus :
"9. Ownership imports three essential rights, namely, right to possession, right to enjoy and right to dispose. If an owner is wrongly deprived of possession of his property he has a right to be put in possession thereof. All the three essentials are satisfied in the case of co-owner of a land. All co-owners have equal rights and co-ordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co-owner has, in theory interest in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others (vide Mitra's Co-ownership and Partition, Seventh Edn.).
10. A three-Judge Bench of this Court has held in Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335 that a co-owner owns every part of the composite property along with others. lowing statement of law has been made by their Lordships (Para 29):
"Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. exist". The position will change only when partition takes place."
11. To hold that a co-owner is not an owner and his possession is not the possession envisaged in Section 2(25) of the Act is in conflict with the correct legal position. If a co-owner wants to erect homestead on the land he is free to do so. When a division of the co-ownership property takes place the co-owner who put up the homestead can claim that the said portion may be allotted to his share. Courts would ordinarily grant such equitable relief when claimed. [vide Nutbehari Das v. Nanilal Das, AIR 1937 PC 611 If the other co-owner objects to the construction of a homestead he can get the co-ownership property divided by partition, and if the other party is not readily willing to that course it is open to him to get it partitioned through suit. These are various remedies available to the co-owner in respect of his land. Merely because he has to re- sort to such steps it cannot be said that a co-owner cannot erect a homestead on his land."
29. In the case of Ram Prasad Tiwari (supra), a co-ordinate Bench of this Court has held that if one co-sharer is being injuncted from using and enjoying the land which falls in his share also by virtue of being co-sharer, such an aggrieved co-sharer can maintain a suit for injunction.
30. In the light of the authorities discussed, and applying the above principle to the facts of the case, I find that in the plaint, the general pleading is with regard to undivided shares and the only exception is paragraph-9 wherein allegations have been made that there was a threat by the co-sharers namely the respondents to change the nature of the land.
31. In the background of these pleadings, I find that there is no pleading with regard to any construction activity initiated by the defendants-respondents in the suit and the Relief-A in the Final Relief Clause is to the effect that without partition the respondents be restrained not to change the nature of land. The Court without least application of mind directed for an ad-interim injunction on 10.6.2020. However, thereafter, the written statement was filed in which the basic plea was taken that there was already mutual partition of the property amongst the co-owners and that there was no construction work going on but only some repair work was being undertaken given the old constructions upon land land that fell into their shares. In these circumstances, the basic prayer ought to have been for partition if the plaintiff was claiming that the property had not been partitioned in metes and bounds. The trial court after the objections were filed though noticed the objections of the defendants taken in the suit as well as to the 6C application but proceeded to assume that the property was undivided as the tenure holders continued to be recorded in a joint khata.
32. In the background of the pleadings that have been discussed above an injunction order was totally uncalled for. The principles that have been finally discussed above for consideration of injunction suit, on those parameters, the injunction could not have been maintained and instead petitioner ought to have either amended the relief clause in the plaint demanding for partition or should have filed a fresh suit for partition. Since the defendants have taken the plea that they were not raising any new construction activity and only some repair work was going on in the old existing construction where the defendants are residing, such an act would not amount any destruction or damage to the joint property, nor would result in appropriation by the defendants of any part of land in name of raising construction. In these circumstances, I do not find, the judgment passed by the District Judge suffering from any manifest error of law and facts.
33. However, it is left open for the petitioner to either seek amendment in the suit to add a relief for partition or to file a fresh suit for partition and also maintain an application of injunction afresh in the event any new construction activity is undertaken upon a joint land.
34. With liberty aforesaid, this petition stands disposed of.
35. Cost made easy.
Order Date :- 5.1.2023 SA