Ashok Kumar vs Sushma Gupta

Tarlok Singh Chauhan, J.—The appellant is the defendant, who is aggrieved by the judgment and decree dated 23.5.2002 passed by learned District Judge, Kangra at Dharamshala, in Civil Appeal No. 60 of 2000 whereby he upheld the judgment and decree dated 17.3.1999 passed by learned Sub Judge 1st Class (I), Kangra in Civil Suit No. 186 of 1990.

The facts, in brief, are that the predecessor of the respondents, namely Kesari Devi, instituted the suit for declaration with permanent and prohibitory injunction, restraining the appellant/defendant from changing the nature, digging foundations and raising construction over the land shown as ''Gair Mumkin Sehan'' entered in Khata No. 76 min, Khatauni No. 156 min, Khasra No. 942, measuring 93.39 sq. mtrs. situated in Up-Mohal Tehsil Chowk, Mouza Ujjain, Tehsil and District Kangra, H.P. (hereinafter referred to as the land in dispute) and in case any encroachment is effected, the same be got demolished and removed by grant of mandatory injunction, on the pleadings that land in dispute is entered as ''Gair Mumkin Sehan'' jointly owned and possessed by the parties and the plaintiff is simpleton and widow whereas the defendant is very clever, shrewd and strong headed person and the defendant, since beginning of May 1990, started collecting material and is threatening to lay foundation, change the nature and raise construction over the jointly owned and possessed ''Gair Mumkin Sehan'' for which he has no right and if the construction is raised over any portion of the land in dispute, the same deserves to be removed and demolished by grant of mandatory injunction. During the pendency of the suit, the original plaintiff Kesari Devi died and her legal representatives were substituted by the order of the trial Court dated 11.8.1993.

The suit of the plaintiff was resisted and contested by the defendant/appellant by filing written statement, who took objection that the plaintiff has got no locus standi and cause of action to sue and the plaintiff waived the right to sue, if any, and that there is a temporary arrangement between the parties and the defendant is in possession of the land in dispute by way of arrangement between the parties and has raised foundation after getting the plan approved from Municipal Committee, Kangra.

The plaintiff filed the replication to the written statement filed by the defendant and reiterated all the allegations made in the plaint and denied those of the written statement.

On the pleadings of the parties, the learned trial Court framed the following issues on 12.3.1992:

Whether the plaintiff is entitled for the relief of injunction as prayed for? OPP

Whether the plaintiff has no locus standi or cause of action to file the present suit? OPD

Whether the plaintiff is estopped by his act and conduct? OPD

Whether the suit is within time? OPP

Whether there has been private arrangement between the parties and the suit land is in the exclusive possession of the defendant as alleged? OPD

Whether the entries in the revenue record showing the suit land in possession of the plaintiff is wrong and collusive as alleged? OPD

Relief.

After recording the evidence and evaluating the same, the learned trial Court decreed the suit of the plaintiff. Aggrieved by the judgment and decree dated 17.3.1999, the defendant/appellant filed an appeal before the learned lower Appellate Court, who vide judgment and decree dated 23.5.2002 dismissed the appeal and upheld the judgment and decree passed by the learned trial Court.

Aggrieved by the judgments and decrees passed by the learned Courts below, the appellant/defendant has come up before this Court in Second Appeal.

This Court vide order dated 3.9.2002 admitted the appeal on the following substantial questions of law:

Whether in law a co-owner/co-sharer in joint possession is precluded from utilizing exclusively the joint holding to the extent of less than his undivided share in such joint holding?

Whether a decree for mandatory injunction by ordering the removal of the construction in law can be passed against a co-sharer/co-owner in joint possession qua such construction which has been carried out over an area falling short to the share of such co-owner/co-sharer?

Whether on proper construction of the pleadings more especially of the plaintiff, decree for mandatory injunction in the present case is vitiated having been passed in the absence of specific pleadings qua the nature and extent of construction on suit land at the time of filing of the suit?

Whether the findings of the learned Courts below are vitiated for mis-construction and mis-application of the evidence more especially Exhibit PW-3/A (the local commissioner''s report) Exhibit P-1 (Jamabandi)?

I have heard learned counsel for the parties and have also gone through the records carefully and meticulously.

Since all the substantial questions of law are somehow interconnected and inter-related, I proceed to deal with the same collectively.

The parties are not at variance that the land in dispute is recorded as ''Gair Mumkin Sehan" and is jointly owned and possessed by the parties. This land is being put to common use and purpose and, therefore, no co-sharer has right to raise construction over the same without consent of the other co-sharers.

The learned Courts below have concurrently found the property to be joint and further contention of the appellant that he was in possession of the land in dispute by virtue of an arrangement has also been negated by both the learned Courts below. These are pure findings of fact and cannot be interfered with by this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure.

The appellant has led no evidence to show that the land in dispute is less than his undivided share in such joint property and having failed to prove this fact, the Courts have committed no illegality while passing a decree for mandatory injunction thereby ordering the removal of the construction raised by the appellant. The principles relating to the inter se rights and liabilities of the co-owners are well settled and have been re-stated by the Hon''ble Supreme Court in Jai Singh and Others Vs. Gurmej Singh, wherein it has been held as under:

"It is to be noted that in the subsequent Full Bench judgment in Bhartu Vs. Ram Sarup, , the earlier decision in Lachhman Singh Sunder Singh Vs. Pritam Chand Kirpa Mal and Another, was distinguished on facts. The principles relating to the inter se rights and liabilities of co-sharers are as follows:

(1) A co-owner has an interest in the whole property and also in every parcel of it.

(2) Possession of joint property by one co-owner is in the eye of the 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 anybody to disturb the arrangement without the consent of others except by filing a suit for partition."

In view of clear cut exposition of law, it can be safely concluded that the appellant being only one of the co-sharers had no right to appropriate a part of the joint land without the same having been partitioned and, therefore, he could not have raised construction over the same. The learned Courts below have correctly appreciated the pleadings and the evidence calling for no interference by this Court.

All substantial questions of law are answered against the appellant.

Resultantly, there is no merit in the appeal and the same is dismissed, leaving the parties to bear their own costs.

C.M.P. No. 991 of 2011

In view of disposal of the main appeal, this application has been rendered infructuous and is disposed of as such.