Punjab-Haryana High Court
Kehar Singh And Ors. vs Joginder Kaur Alias Jogindero And Ors. on 3 December, 2003
Equivalent citations: (2004)138PLR25
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The defendants are in appeal against the decree for mandatory injunction passed by the Courts below directing them to restore possession of land, after removing the constructions and malbas thereon.
2. The plaintiffs-respondents filed a suit for permanent mandatory injunction restraining defendants to restore the possession of the property as mentioned and detailed in the head note of the plaint inter alia on the ground that parties are the co-sharers of the land in dispute. There is litigation pending between the parties, The defendants along with Sadhu Singh deceased were trying to occupy the southern portion of the property, even through the partition proceedings are still pending regarding the suit land. Since the plaintiffs apprehended danger at the hands of defendants, they filed suit on the plea that no co-sharer can raise any construction changing the nature of the property against the interest of the other co-sharers.
3. In the written statement, the defendants-appellants stated that the plaintiffs are barred by act and conduct from filing a suit as well as the suit suffers from partial partition. The suit is time barred and suffered from non-joinder of the necessary parties.
4. The learned trial Court found that the land in dispute is the joint property and that it has not been partitioned by meets and bounds. However, the learned trial Court found that the defendants have raised construction and, thus, excluded the plaintiffs from pos session of the land jointly owned by them and granted a decree for mandatory injunction as mentioned above. The Courts below have also held that the suit for injunction filed by the plaintiff-respondents is not that of initial partition.
5. In the present appeal, the question whether the entire property has been included in the present suit for injunction is not required to be examined. The question is required to be decided in the partition proceedings and not in the present appeal.
6. In my opinion, the following substantial question of law arises for consideration by this Court:
"Whether a co-sharer in exclusive possession of a portion of the property, can be directed to remove the construction raised on such portion without partition of the land?"
7. In Bhartu v. Ram Sarup, 1981 P.L.J. 204, a Full Bench of this court has held that a co-sharer is entitled -to enjoy the possession of land in a husband like manner, The right of the co-sharer who is not in possession is to seek partition of the land. Subsequently, The Division Bench of this Court in Bachan Singh v. Swaran Singh, (2000-3)126 P.L.R. 416 has held that a co-owner who is not in possession of the property is not entitled to injunction against another co-owner who is in exclusive possession of the suit property.
8. The plaintiffs are not disputing the fact that the construction has been raised by the defendants and that they are in exclusive possession thereof. Once the defendants are in exclusive possession of the suit property, the defendants have the right to enjoy the possession thereof subject to the right of the other co-sharers in partition proceedings. There cannot be any decree for mandatory injunction directing the defendants to remove the construction raised on the joint land,
9. This Court in Yash Pal Sharma v. Shanta Rani, 1999(1) P.L.J. 614 has held that the suit for directing the defendants to deliver the possession is not competent. The right of the aggrieved plaintiff is to seek partition of the land. It was so held by this Court as under :-
"After hearing the learned counsel and on going through the record, I am of the view that there is no merit in this appeal. It is now no more in dispute that respondent No. 1 came in possession with the consent of respondent No. 2 who is also a co-owner along with the plaintiffs. Construction too was raised by respondent No. 1 with the consent of respondent No. 2. It is true that normally a co-owner is not entitled to raise construction of permanent nature on joint land without the consent of other co-owners but in this case construction has already been raised and, therefore, the appropriate remedy now left to the plaintiffs is only to sue for partition and not for directing respondent No. 1 to deliver possession after removing the construction. In case, on partition, the property in possession of respondent No. 1 comes to the share of the plaintiffs, they would be entitled to take possession from him as he was not put in possession by the other co-owner with the consent of the plaintiffs. So far as the present suit is concerned, no relief could have been granted to the plaintiffs and, therefore, both the Courts were right in dismissing the suit of the plaintiffs. Accordingly, this appeal shall stand dismissed."
10. Hence, no decree directing the defendants to remove the construction and Malba can be passed in favour of the plaintiffs against the defendants who are in exclusive possession of the property and have raised construction thereon.
In view of the above, this appeal is allowed. The judgment and decree passed by the Courts below is set aside. Parties are at liberty to seek partition of the land in accordance with law.