Shiv Shanker Pandey (Dead) vs Vishwanath Pandey and Another

D.K. Seth, J.—This appeal is directed against the judgment and decree dated 14.11.1984 passed by the Learned III Additional District Judge, Azamgarh in Civil Appeal No.136 of 1983 reversing the judgment and decree dated 26.3.1983 passed by the learned Munsif, Mohammadabad Gohna, Azamgarh in the original suit No.767 of 1981 partly allowing the appeal and decreeing the suit for permanent injunction restraining the defendants permanently from interfering in the possession of the plaintiffs in respect of the land shown by letters ''Ka Kha Ta Tha'' in map 15A which was made part of the decree.

The plaintiffrespondents had filed the suit for permanent injunction against the defendants on the ground that by virtue of partition between the ancestors, the parties were occupying different part of the property and had constructed their respective houses thereon. In between the two houses the land was claimed as Sehan, Courtyard with a Thatched hut of the plaintiffs'' house, which was encroached by the defendants by building cattle troughs for which the prayer for permanent injunction as well as mandatory injunction for removing the cattle troughs were prayed for. The defendants'' case was that the father of the plaintiffs had constructed a new house on the North of the ancestral house which was presently occupied by the plaintiffs and that there was a house of one Laxmidas to the South of the house of the plaintiffs and the ancestors of the defendants were desciple of Laxmidas and Laxmidas had given the said house to Someshwar Pandey vide a deed on 5.8.1907 and that the father of the plaintiffs had relinquished half of the house in favour of Ram Autar Pandey and since then the defendants are in exclusive possession of the land ''Ka Kha Ga Gha'' right from the time of Rajaram and Ram Autar and that they had planted trees, put thatch and constructed cattle throughs long before in 1981 and that the said land is settled in favour of the defendants under Section 9 of the U.P. Zamindari Abolition and Land Reforms Act, therefore, they had denied the right of the plaintiffs.

The trial court had dismissed the suit by its judgment and decree dated 26.3.1983. Aggrieved, the plaintiffrespondents preferred the civil appeal No.136 of 1983 which was partly allowed decreeing the suit in part with regard to the permanent injunction in respect of the land shown by letters ''Ka Kha Ta Tha''.

Learned counsel for the appellant Mr. U.K. Misra contends that the finding of facts that has been concurrently found to the extent that the plaintiffs have failed to prove partition, therefore, the property is a joint property. If it is so, in that event the plaintiffs and defendants are cosharers, therefore, no suit for injunction can be maintained by one cosharer against another cosharer in respect of joint property in respect of which both parties have right in every inch of the property. According to him they can file suit for partition and not for injunction, therefore, the judgment of the appellate court cannot be sustained and the suit has to be dismissed. He has further contended that there was no pleading in the plaint with regard to the exclusive possession in respect of the property and as such assuming, but still then no suit for injunction could be maintained against the defendants who are cosharers of the property. He had relied on different judgments which may be referred to at appropriate stage.

Mr. Faujdar Rai, learned counsel for the plaintiffrespondents on the other hand had filed a crossobjection. In the said crossobjection he had challenged certain finding of facts as against the plaintiffs. But at the very outset Mr. Faujdar Rai has submitted that he is not processing his crossobjection at this stage. In such circumstance the crossobjection is dismissed as not pressed.

Relying on the finding of facts arrived at by the court below Mr. Rai contends that since these are finding of facts this court sitting in Second Appeal cannot enter into these questions. Now on the basis of the admitted facts as has been found by the court below, according to him, even if the partition has been disbelieved but the court has found possession of the parties as has been found in respect of the property to which the relief was confined. Therefore, according to him if it appears that parties are in exclusive possession even though there may not be any partition still then they can protect their exclusive possession against the other from being deprived of such possession. According to him that on the finding severance is an admitted position. The defendants have themselves pleaded that they have separate house and the dispute is for the land which is in between the house. It is also found that the trees existing on the land were planted by the plaintiffs and thus on the basis of such possession there appears to be severance. Even though there may not be partition but severance in the family and separate possession of the parties results into exclusive possession which is little less than partition between them who are the members of the family by metes and bounds. As such, one is entitled to protect his possession and a suit for injunction is very much maintainable. He also contends that the defendant himself having claimed title on the basis of Section 9 of the U.P.Z.A & L.R. Act in respect of the property as an absolute owner he is precluded and estopped from claiming joint possession and as such it is to be treated as exclusive possession and a suit for injunction can very well be maintained. On these grounds he prays that appeal should be dismissed.

I have heard learned counsel for both the parties at length.

From the judgment of the lower appellate court it appears that the plaintiffs had failed to prove the alleged partition between their predecessors. Now this being finding of fact sitting in second appeal this Court has to proceed on the basis of such finding. Now the question is as to whether there is any finding of exclusive possession or not. It also appears from the said judgment that the plaintiffs are in possession of the land shown by letters ''Ka Kha Ta Tha'' irrespective of the fact as to how the land came in their possession. Thus it appears that plaintiffs'' possession in respect of the land shown by letters ''Ka Kha Ta Tha'' has since been found by lower appellate court.

Now whether this possession can be treated to be an exclusive possession, is to be examined. Learned counsel for the appellant has contended that there is no claim claiming exclusive possession in respect of the property. In the plaint the case of partition was made out which necessarily implies and means exclusive possession of the parties. Thus the very foundation of the plaint is an exclusive possession by virtue of partition. Even if he is unable to prove partition but still then pleading remains one of exclusive possession.

Now in order to ascertain whether the possession is exclusive or not, the materials brought on record are to be looked into. In the defence case exclusive possession of the defendants have been claimed in respect of the house in their possession by virtue of a deed dated 5.8.1907 and also by virtue of relinquishment of half share by Rajaram. By virtue their exclusive possession from the time of Rajaram and Ram Autar they had put thatch, constructed cattle troughs and planted trees. It is also claimed by the defendants that the land was settled with the defendants under Section9 of the U.P.Z.A. & L.R. Act. Thus, the defendants had also not pleaded joint property. The defendants have made out exclusive possession in their favour while it has been admitted by them that the plaintiffs have built a new house to the North of the ancestral house and which is occupied by the plaintiffs. Thus the defendants had admitted exclusive possession of the plaintiffs in respect of house of the plaintiffs.

Thus, the severance in the possession of the property having been admitted it should be presumed to be severance in the family qua the property. If this exclusive possession is admitted in respect of the house which is not disputed by any of the parties now the question remains as to whether land in between the two houses had remained joint or not.

This question may be examined from the pleadings made out in the written statement by the defendants which may be treated to be admission of the defendants. The defendants have claimed that they had put a thatch, planted trees and constructed troughs which shows their exclusive right in doing so. Thus on the pleadings it seems that the parties were in exclusive possession.

Whether there has been a severance in the family qua the property in dispute or whether the land or property is held jointly by them is a question of fact which can be determined on the basis of the materials having regard to the facts and circumstances of each case. There cannot be any straight jacket formula. In the present case having regard to the facts and circumstances of the case, the finding arrived at with regard to the possession of the plaintiffs cannot therefore be termed as perverse based on no materials. Thus the same having assumed the character of concluded finding of fact this Court sitting in second appeal cannot interfere with the same. On the basis of such finding the Court is free to presume partition qua the property by reason of such severance.

Now let us examine as to whether on these facts a suit for injunction can be maintained and the parties can maintain or protect their possession against the other. Even if it is assumed that there has not been any partition by metes and bound but a long possession having ingredient of severance in the family indicates a severance in the jointness of enjoyment qua the property namely the property concerned. Even if it is assumed that without partition the property remains joint still then by reasons of the fact found, the property did not remain joint but were in exclusive possession and enjoyment of the respective parties, who are using the same, the user of the property also indicates the possession. As each of the cosharer has right in every inch of the property, at the same time each of the cosharer has right to enjoy the property. If there is peaceful possession in that event such possession cannot be disturbed without partition. As every one has right to maintain his possession at the same time he cannot claim a right to disturb anothers'' possession. Every joint owner or coowner has right to maintain his possession from not being evicted. Therefore, a suit for injunction, in certain circumstances, even in respect of joint property where exclusive possession is found, can very well be maintained for protecting one''s peaceful possession.

Both the learned counsel have relied on certain decisions. Mr. Rai had relied on the case of M/s. Kalloomal Tapeswari Prasad v. C.I.T. Kanpur, 1982 ALJ 270(2). He has placed reliance on paragraphs 16 & 17 of the said decision. In the said paragraphs it was held:

�Under Hindu law partition may be either total or partial. A partial partition may be as regards persons who are members of the family or as regards properties which belong to it. Where there has been partition, it is presumed that it was total one both as to the parties and property but when there is a partition between brothers, there is no presumption that there has been partition between one of them and his descendants. It is, however open to a party who alleges that the partition has been partial either as to persons or as to property to it. The decision on that question depends on proof of what the parties intendedwhether they intended the partition to be partial either as to persons or as to properties or as to both. When there is partial partition as to property, the family ceases to be undivided so far as properties in respect of which such partition has taken place but continues to be undivided with regard to the remaining family property. After such partial partition, the rights of inheritance and alienation differ accordingly as the property in question belongs to the members in their divided or undivided capacity. Partition can be brought about (1) by a father during his lifetime between himself and his sons by dividing properties equally amongst them, (2) by agreement or (3) by a suit or arbitration. A declaration of intention of a coparcener to become divided brings about severance of status. As observed by the Privy Council in Appovier v. Rama Subba Aiyan, (1866) 11 Moo. Ind. App. 75:

"When the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject matter so agreed to be dealt with, and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided.�

A physical division of the property which is the subjectmatter of partition is not necessary to complete the process of partition in so far as that item of property is concerned under Hindu Law. The parties to the partition may enjoy the property in question as tenantsin common. In Appovier''s case (supra) the Privy Council further laid down that �if there be a conversion of the joint tenancy of an undivided family into a tenancyincommon of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement, and that is a separation in interest and in right although not immediately followed by a de facto actual division of the subjectmatter. This may at any time, be claimed by virtue of the separate right.

It is thus clear that Hindu law does not require that the property must in every case be partitioned by metes and bounds or physically into different portions to complete a partition. Disruption of status can be brought about by any of the modes referred to above and it is open to the parties to enjoy their share of property as tenantsincommon in any manner known to law according to their desire.�

The above ratio as has been laid down in above paragraphs supports the view which has been taken here by this Court.

Mr. Rai has relied on the decision in the 1983 ALR 81. Mr. Rai had placed reliance on the following passage:

�The respondents'' learned counsel laid stress especially upon observations in B. Mahabir Singh and another v. B. Shanker Singh and another. In support of his argument that the acts concerned in the instant case are not acts of possession. No such inference is possible to be drawn. The subjectmatter of dispute in that case was a piece of waste land belonging to the Zamindar and lying between the houses of two sets of ryots. The finding was that by temporary use for occasional necessities of a house holder such as keeping firewood until it is exhausted, bricks until they are used and on the occasion of a marriage once every few years, placing chulhas to cook food the plaintiff could not lay claim to exclusive possession in themselves and even if continued for 12 years these acts would not establish adverse possession. The decision in Framji Cursetji (supra) was followed. Accordingly it was observed:

�Whereas in this case, however, they have been making only a temporary use of the land for the occasional necessities of a householder, such as keeping firewood until it is exhausted, bricks until they are used and on the occasion of a marriage once every few years, placing chulhas to cook food, it could not be said that an exclusive user has been established. There is nothing in any of these acts to stop any one else from doing the same thing. Merely because the defendants had not upto the date of suit done any of these things, it does not establish that they have not a right to do them now. Before a person who is not the owner of land can prevent another person from using the land to the same extent as himself, he must establish a right by acts of exclusive possession of a very definite nature. It has been held in 16 Bom. 328(1) that a miscellaneous user of this sort cannot create any title by adverse possession. That appears to me to establish the principle that a miscellaneous user of this sort is not possession at all. If acts of this sort constituted possession, 12 years continuous user would establish adverse possession.�

In the present case, the plaintiffs are not required to prove that they have matured title by adverse possession. Since the plaintiffs have themselves been in exclusive possession of this land using it as their sehan and the defendants (who have their Sehan land separately towards the north of their house) have had no better title, the former are entitled to maintain that they be allowed to retain possession of whatever kind it is undisturbed and the defendants be directed to vacate the portion which they unauthorisedly usurped from out of this Sehan by raising an Osara shortly before the suit was instituted.

The above passage also goes to the extent of possession by reason of user which also supports the view which I had taken.

He had then relied on the decision of Bhairodin v. Sripal, 1978 ALJ 1021. In the said decision the decision of Chhedi Lal v. Chhotey Lal, AIR 1951 All 199 (1951 All LJ 241), (FB) was followed and it was held that the peaceful possession has to be fortified with the reason and in paragraphs 13 and 14 it has been held:

�Here in this case the plaintiffappellant had not been found to be in possession and the other cosharers remained in peaceful possession thereof. This was fortified by the finding that the planting of all the trees in grove was done by the remaining cosharers, i.e., defendantsrespondents and not by the plaintiffappellant at all. So, that shows that this case is not covered by the earlier ruling.

Further it has been held in Chhedi Lal v. Chhotey Lal, AIR 1951 All 199; (1951 All LJ 241), (FB) that the question of the right of cosharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a cosharer, whose right in respect of joint land has been invaded by the other cosharers either by exclusively appropriating and cultivating land or by raising constructions thereon. It depends upon the circumstance of each case as to what particular relief may be granted to a cosharer who has been deprived of or is being deprived of his share in the joint property.

The said decision following the Full Bench supports that one cosharer is entitled to protect his right from being dispossessed or from being disturbed in his peaceful possession.

In the decision in the case of Irabhoo v. Deodh Nath, 1978 (sic)109, it has been laid down that the suit for injunction against a coowner in respect of joint family property is maintainable depending on the facts and circumstances of each case. This case also supports the view which I had taken hereinbefore. He then relied on the case of Maniar Ismail Sab and others v. Maniar Fakruddin and others, AIR 1989 SC 1509. But this decision does not help us for our present purpose. He had also relied on the decision in the case of Ramchandra Pandurang Sonar v. Murlidhar Ramchandra Sonar, AIR 1990 SC 1973. This decision is also of no use for our present purpose.

On the other hand Mr. Misra had relied on decision in the case of Srinivasa Aiyangar and another v. Narayana Aiyangar, AIR 1920 Madras 162. Relying on the said decision he had contended that members of joint family in possession can not file suit for injunction in order to prevent dispossession or entry by other members of the joint family. The remedy is by way of partition and then to pray for injunction. This proposition is not an absolute proposition. It depends upon the facts and circumstances of each case. This decision does not lay down that in each and every case a suit for injunction can not be maintained and suit for partition would lie. Principle of law will apply on the facts and circumstances of each case. Abstract law has no bearing unless it is applied to a particular case. Each proposition of law is to be applied according to the facts and circumstances of each case depending on the particular situation as to how the proposition of law could be attracted. The reliefs are claimed on the basis of the facts as well as those as has been found on the basis of the materials on record.

In the present case the defendants have not claimed joint ownership in respect of the house or even in respect of the exclusive possession of the property.

In a suit in which partition had taken place is the basis on which the plaintiff is claiming injunction, if partition is not proved but exclusive possession is proved, still then the suit for injunction is maintainable.

Mr. Misra then relied on the case of Kumarasamy Gounder v. Kumarathal alias Gandhimathi, AIR 1999 Madras 462, Wherein it was held that the suit for injunction against a coowner is not tenable. But the said decision was given on the facts and circumstances involved in the said case. It was a suit for declaration of title and permanent injunction which is not a case involved in the present case namely, no declaration was prayed for. It was alleged in the said case that the defendant was an illegitimate child. It was denied by the defendant on the ground that the mother of the plaintiff was a legally married second wife of the father which was supported by the cousin brother of the defendant who had no enmity with the plaintiff and on the admitted fact that the plaintiff''s father and the defendant''s mother resided together which led to presumption of legitimacy of their marriage. In the circumstances, plaintiff was entitled only to half share in the property. In the above case the suit for declaration and for permanent injunction was filed and not for partition. In that view of the matter the ratio laid down therein cannot be attracted to the facts and circumstances of this case which are altogether distinguishable. As such no benefit can be derived thereout for our present purpose.

In the result the appeal fails and is accordingly dismissed. No costs.

(Appeal dismissed.)