Jarnail Singh, Jasveer Singh and Ramesh Kumar vs Sh. Vinod, Shri Krishan Singh and Smt. Yashoda

Kuldip Singh, J.—This petition under Article 227 of the Constitution of India is directed against judgment dated 17.7.2012 passed by learned District Judge, Sirmour Division at Nahan, in Civil Misc. Appeal No. 4-CMA/14 of 2012 affirming order dated 15.3.2012 passed by learned Civil Judge (Sr. Division), Court No. 1, Paonta Sahib in CMA No. 177/6 of 11 in Civil Suit No. 143/1 of 11. The facts in brief are that respondent No. 1 has filed a suit for permanent prohibitory injunction against petitioners and proforma respondents No. 2, 3, restraining them from digging and raising any construction over land comprised in Khasra Nos. 188, 715/189,196 total measuring 17.10 bighas, Mauza Kollar on the ground that parties are co-sharers in the suit land which is abutted to Paonta-Nahan road. The respondent No. 1 has purchased 10 biswas land out of suit land from proforma respondent No. 2 through registered sale deed dated 15.11.2011 and the possession of 10 biswas land was delivered to respondent No. 1 on 15.11.2011. The said 10 biswas land is having 85 feet front adjoining to Paonta-Nahan road. It has been alleged that petitioners and proforma respondent No. 3 have threatened the respondent No. 1 to dispossess him from the land purchased by him. In December, 2011 petitioners and proforma respondents No. 2, 3 had started digging over the suit land for raising construction with a view to occupy the entire front adjacent to Paonta-Nahan road without leaving no front for respondent No. 1.

The petitioners contested the suit by filing joint written statement, they took preliminary objections of maintainability, cause of action, estoppel, concealment of material facts, better particulars, locus standi, malafides. It has been pleaded that suit land has not been partitioned, however for the purpose of cultivation, petitioners and proforma respondents are in possession of the suit land as per their convenience. The khasra No. 188 and khasra No. 715/189 are adjacent to each other with front 380 feet abutting to National Highway-72. The petitioner No. 1 and proforma respondent No. 2 are having their separate houses, cow-sheds etc. over this portion of the suit land. In September, 2011 petitioner No. 1 had demolished his old residential house adjoining to National Highway-72 for raising new construction on the site of demolished structure, he started raising construction over the demolished house in October, 2011. All co-sharers who were aware of the factual situation did not raise any objection to the construction of petitioner No. 1.

The respondent No. 1 on or after 17.11.2011 threatened to raise construction in front portion of the suit land, the petitioner No. 1 filed suit against respondent No. 1 who was restrained by the Court from changing the nature of the suit land. Thereafter the respondent No. 1 has filed the suit. On merits the petitioners denied the claim of respondent No. 1. It has been denied that possession of 10 biswas of land with 85 feet front adjoining to Paonta-Nahan road was delivered to respondent No. 1 by proforma respondent No. 2.

The respondent No. 3 has filed separate written statement. She admitted that the suit land is jointly owned by parties. She has stated that her husband respondent No. 2 has sold 10 biswas land to respondent No. 1 without her consent. She denied that possession of 10 biswas land having 85 feet front adjoining to Paonta-Nahan road was delivered to respondent No. 1. She denied the remaining claim of respondent No. 1. The respondent No. 1 filed separate replications to the written statements of petitioners and respondent No. 3.

The respondent No. 1 filed an application under Order 39 Rules 1 and 2 read with Section 151 CPC and prayed for interim injunction. This application was also contested by petitioners by filing reply. The learned Civil Judge allowed the application on 15.3.2012 and restrained the petitioners as well as proforma respondents from digging and raising construction over the suit land measuring 17.10 bighas till the final disposal of the suit. The learned District Judge on 17.7.2012 has affirmed the order dated 15.3.2012, hence present petition.

Heard and perused the record. The learned counsel for the petitioners has submitted that while allowing the application of respondent No. 1, the Courts below have virtually allowed the entire suit of respondent No. 1 at initial stage. The respondent No. 1 has allegedly purchased 10 biswas of land out of total joint land measuring 17-10 bighas, 389.5 feet land out of the joint land abuts the National Highway instead of only 85 feet land as claimed by respondent No. 1. The respondent No. 1 has not identified 85 feet land claimed by him abutting the National Highway. The respondent No. 1 is not entitled to restrain order over entire suit land when his claim is only with respect to protection of 85 feet land in the front abutting National Highway allegedly purchased by him. The petitioners are raising construction over the same area where old house was in existence which was demolished in December 2011 for raising new construction. The civil suit filed by petitioners against respondent No. 1 has been withdrawn which fact has not been properly appreciated by the Courts below. The learned counsel has relied Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, Bachan Singh Vs. Swaran Singh, and Mandali Ranganna and Others etc. Vs. T. Ramachandra and Others, .

The learned counsel for respondent No. 1 has supported the impugned Judgment. He has submitted that the two Courts below have appreciated the material on record. The scope of interference under Article 227 is limited. There is no jurisdictional error in the impugned Judgment. The partition proceeding of the suit land is pending; in case petitioners are permitted to raise construction over any part of the suit land then respondent No. 1 will suffer serious prejudice inasmuch as petitioners will claim protection of their possession in the partition case. The submission has been made for dismissal of the petition.

The petitioners have admitted that respondent No. 1 is co-sharer with them on the suit land but they have denied that respondent No. 1 is actually in physical possession of 10 biswas land having 85 feet front towards National Highway. According to petitioners the front of suit land is 389.5 feet. It has also come on record that petitioner No. 1 had filed a suit for injunction against respondent No. 1. The petitioners have placed on record photographs of the construction undertaken by the petitioners Annexure P-5 before passing of the injunction order.

It is well known that at the time of consideration of application under Order 39 Rules 1 and 2 CPC, prima facie case, balance of convenience and irreparable loss are to be considered. In Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram and Others, , the Division Bench has held as follows:-

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

(2) Possession of the 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 to by the other co-owners, it is not open to anyone to disturb the arrangement without the consent of the others except by filing a suit for partition.

(8) The remedy of a co-owner not in a 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-owner, 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 the special damage has been suffered. Case law reviewed.

On behalf of the petitioners, it has been contended that respondent No. 1 who claims only 10 biswas land out of 17.10 bighas suit land has at the most right over 10 biswas of land and not on rest of the suit land. It has also been contended that respondent No. 1 has miserably failed to identify 10 biswas land purchased by him from respondent No. 1. The respondent No. 1 has placed on record copy of jamabandi 2007-2008 of khasra No. 188, 715/189, 196. In the remarks column there is note that mutation No. 1867 of sale land measuring 10 biswas has been sold by Krishan Singh in favour of Vinod Kumar and the mutation has been attested on 9.12.2009. In the copy of sale deed, it has been stated that possession of 10 biswas land has been handed over to respondent No. 1 by the vendor. In the application dated 5.12.2011 addressed to Incharge Police Post, Majra respondent No. 1 has stated that he had purchased 10 biswas land having 85 feet front towards NH-72. Thus prima facie it cannot be said that respondent is not in possession of land purchased by him. The photographs Annexure P-5 filed by petitioners with the petition indicate that the construction of petitioners involves old house and new construction showing no traces of old construction.

In Dorab Cawasji Warden (supra), it has been held that relief of interim injunction is all the same an equitable relief the court shall also consider whether the comparative mischief or inconvenience which is likely to ensure from withholding the injunction will be greater than that which is likely to arise from granting it, which means that the balance of convenience is in favour of the plaintiff. In that case the trial Court had granted mandatory injunction with some rider. The High Court set aside the order granting the injunction but also directed respondent No. 4 and his wife not to make any permanent alterations in the suit premises with certain stipulations. The Supreme Court has held that refusal to grant an interim mandatory injunction will do irreparable injury to the appellant, balance of convenience is also in favour of the appellant. The Supreme Court set aside the judgment of the High Court and restored that of the trial Court.

In Bachan Singh (supra), it has been held as follows:-

On a consideration of the judicial pronouncements on the subject, we are of the opinion that:

(i) a co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of co-owner out of possession.

(ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.

(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.

(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest."

In Mandali Ranganna & Ors.(supra), it has been held that while considering an application for grant of injunction, the Court will not only take into consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties.

The learned counsel for the petitioners has also relied CMPMO No. 35 of 2011, Sardar Singh vs. Smt. Salam Pati and others decided on 6.4.2011 and CMPMO No. 47 of 2011, Gian Singh alias Hishe Ram vs. Arjun Singh decided on 11.5.2011. In CMPMO No. 35 of 2011 the construction had already reached the lintel level. It was held that at that stage restrain order to defendants would cause irreparable harm and damage to them which cannot be compensated. In CMPMO No. 47 of 2011 also substantial construction had already been raised, it was observed that defendant can complete the same so long as he does not in any manner damage the Chajja. It was also made clear that any construction raised shall be at the risk and cost of the defendant and in case the suit is finally decreed, he shall remove the same without claiming any equity in his behalf.

It is clear from the case law relied by learned counsel for the petitioners that there is no absolute bar that a co-owner is not entitled to interim injunction, it dependants upon the facts and circumstances of the each case. According to respondent No. 1 petitioners are threatening to build on the best part of the joint land abutting the National Highway. The plea of petitioners that petitioner No. 1 is raising construction on the site of the house after demolishing old construction is not prima facie gets support from photographs annexure P-5 filed by the petitioners.

The two Courts below have concurrently allowed interim injunction in favour of respondent No. 1 after assessing prima facie case, balance of convenience and irreparable loss. The findings recorded by the two Courts below on the application cannot be said to be based upon no material. The scope of interference under Article 227 is very limited as held in Sneh Gupta Vs. Devi Sarup and Others, , Dinkar Sridhar Tamhankar Vs. Bhalchandra Sadashiv Kavadi, , Dipali Dey (Baxi) Vs. Mira Das, and Jai Singh and others vs. Municipal Corporation of Delhi and another with Jai Singh and Others Vs. Municipal Corporation of Delhi and Another, . The petitioners have failed to make out a case for interference. In view of above, petition fails and is accordingly dismissed. The pending applications are also disposed of. The trial Court shall decide the suit on merits in accordance with law uninfluenced by any observation made in the judgment. The parties through their counsel are directed to appear in the trial Court on 1.4.2013. The record be sent back immediately.