New India Construction Co. Ltd. and Others vs Desh Raj and Others

Vinod K. Sharma, J.—The present revision petition has been filed against the order dated 19.1.2006 passed by the learned Addl. District Judge, Fast Track Court, Gurgaon vide which the learned appellate Court has issued injunction in favour of the plaintiff-respondent to the following effect:

As a result of above discussion, present appeal is accepted with costs and impugned order dated 9.6.2004 passed by Mrs. Raj Gupta, Additional Civil Judge (Sr. Division), Gurgaon, is set aside and consequently application for temporary injunction under Order 39 Rules 1 and 2 read with Section 151 C.P.C. is disposed of with the order that status qua regarding possession over the suit property be maintained by the parties till the partition proceedings are complete. However, it is made clear that this order of stay would not effect the partition proceedings in any manner and the revenue authorities will be competent to put the parties in possession of their respective land allotted to them in the partition. Any observation made in this order will not effect the partition proceedings in any manner. Disbursement of the compensation money till the decision of the suit by the Ld. Trial Court is stayed.

The contention of the learned Counsel for the petitioners is that it was not open to the learned lower appellate Court to reverse the findings recorded by the learned trial Court in view of the fact that petitioners in pursuance to the purchase of land from Nathi Ram and Inder Pal wherein exclusive possession of 22 kanals of land and on the basis of said sale they were granted licenced by the Haryana Urban Development Authority for development of area and they have spent huge amount for the said purpose. It is not in dispute that the petitioners have themselves filed a suit for partition of joint holdings. It is further not in dispute that the land has been acquired out of the joint holding of the co-sharers and compensation regarding this has been paid by the State of Haryana which is yet to be disbursed. In this view of the matter no error can be found with the judgment passed by the learned Additional District Judge directing the parties to maintain status quo regarding possession of the land as well as compensation which is to be finally adjudicated as per the decision in the partition proceedings taken out by the petitioners. The learned Counsel for the petitioners relied upon the judgment of this Court in Bachan Singh Vs. Swaran Singh, to contend that it was not open to the plaintiff-respondents to seek injunction as they were in exclusive possession of the property as co-owner. However, this judgment does not support the case of the petitioners as in that very judgment this Court has been pleased to hold that a co-owner can seek injunction if the act of co-owner amounts to ouster or is adverse to interest of co-owner who is out of possession. In the present case, part of the property has been acquired and it is yet to be decided as to what part would go to do the respective parties. The claim of the petitioners would prima facie be prejudicial to the interest of other co-owner.

The learned Counsel for the petitioners thereafter placed reliance on the judgment of the Hon''ble Supreme Court T. Lakshmipathi and Others Vs. P. Nithyananda Reddy and Others, to contend that co-owner by an arrangement, expressed for implied, with the other co-owners, possess and enjoy an property exclusively and such a co-owner can also protect his possession against the other co-owners and he is dispossessed by the latter, he can recover exclusive possession. This judgment also does not support the case of the petitioners as in that very judgment the Hon''ble Supreme Court has held that one co-owner cannot take exclusive possession of the property nor can commit an act of waste, ouster or illegitimate use, and if he does so he may be restrained by an injunction. Even otherwise, in the present case the possession of the petitioners has not been disbursed and the learned Court has only ordered maintenance of status qua regarding possession as well as the compensation to be paid which is to be determined in the partition proceedings filed by the petitioners themselves.

There is no merit in the revision so as to call for interference by this Court.