Gurmeet Kaur and Another vs Surjit Singh

D.V. Sehgal, J.—The petitioners filed a suit in the trial court for a decree of permanent injunction restraining the defendant-respondent from interfering with their peaceful possession over the land measuring 1-1/4 Biswas out of 0 Bigha, 2 Biswas and 13 Biswasis as entered in the Jamabandi for the year 1980-81 shows as red in the map, Annexure ''X'' attached with the plaint. They also filed an application under Order 39 Rules 1 and 2 of the CPC for grant of temporary injunction restraining the respondent from interfering in their aforesaid possession. The Learned trial Court, vide its order dated 15.10.1986 directed the parties to maintain status quo in respect of the suit property till the decision of the suit. On an appeal filed by the respondent, the same has been allowed by the Learned Additional District Judge, Ludhiana vide judgment dated 20.3.1987. He inter alia held that the trial court was wrong in directing status quo for the reason that no injunction order could be issued against a co-sharer. It was further observed that the respondent is admittedly a co-sharer in the Khasra in dispute. There being no evidence that the joint land had ever been partitioned amongst the co-sharers, the order of status quo could not be passed. Thus, the order of the trial court was set aside. This is how the petitioners have approached this Court through present revision petition.

I have heard the Learned Counsel for the parties. Mr. V.P. Sarda, counsel for the respondent has relied on the Jamabandi for the year 1980-81 and Khasra Girdawari recorded on 23.10.1985 to contend that the respondent is in exclusive possession of the suit property. I am of the considered view that the Learned Additional District Judge has erred in disturbing the order of status quo passed by the Learned trial court. It appears that he has not adverted to the pleadings of the parties on the record. In para No. 1 of the plait, the petitioners asserted that their predecessor-in-interest Dalip Singh son of Bir Singh was the owner of land measuring 62� square yards i.e. 1� Biswas out of the land measuring 0 Bigha, 2 Biswas and 13 Biswasis comprised in Khewat No. 558, Khatauni No. 656 Khasra No. 1479 as entered in the Jamabandi for the year 1980-81 shown red in the map, Annexure ''X'' attached with the plaint. It was alleged in the plaint that this land had been purchased by Dalip Singh from Bakhtawar Singh one of the co-sharers. The defendant-respondent in his written statement averred in para No. 1 as under:

Para No. 1 of the plaint is wrong and denied. Dalip Singh had purchased land from Bakhtawar Singh and others measuring about 0-0-5-1/2 Biswasis Pukhte i.e. 0-0-1/16 Kham i.e. 2/3 of 13/405 share in the entire land forming part of Khewat/Khatauni No. 558/656, 558/657, 558/658 Khasra No. 1479 and built two shops thereon of the dimensions of 10'' � 30''. In this way, said Dalip Singh is in an unauthorised occupation of excess land to the extent of 25-2/3 square yards i.e. 0-0-10 Biswasis. The plaintiff is not the owner in possession of the land as shown red and blue in the site plan attached. Dalip Singh has been in possession of land as shown A.P. in the site plan attached. Descendant is owner in possession of the suit land as shown red and blue in the plan attached. The boundaries of the property in dispute are also wrong and denied.

The text of the above pleadings make s it clear that it is a virtual admission on the part of respondent that Bakhtawar Singh was a co-sharer of the suit land and that he sold a part of it to Dalip Singh, predecessor-in-interest of the petitioners. It is further admitted that by construction of the two shops the petitioners are in possession of a part of the land but it is asserted that their possession is in excess of the area which was sold to them by Bakhtawar Singh. There can thus be no manner of doubt that the petitioners are in exclusive possession of a part of the joint holding, prima facie they can be dispossessed from the part of the land which is in their possession in excess of their ownership only in due course of law. They, therefore, can maintain their possession till the decision of the suit.

Undoubtedly it is a well settled principle of law that one co-sharer cannot exclude another co-sharer from the joint possession of the land by seeking injunction from the court of law but when it is established that any co-sharer is in exclusive possession of a joint holding, he can preserve his possession by seeking protection of the curt till partition of the joint holding. I am, therefore, of the considered view that the Learned trial court had rightly directed the parties to maintain status quo. The Learned Additional District Judge erred in law in disturbing this order.

Consequently, I allow this revision petition without any order as to costs, set aside the judgment dated 20.3.1987 of the Learned Additional District Judge, Ludhiana and restore the order dated 15.10.1986 passed by the Learned Trial Court.

Any observation made above shall not prejudice the rights of the parties in the final decision of the suit.