High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No.52 of 2014.

Judgment reserved on : 18.06.2015.

Date of decision: 24.06.2015.

Ashok Kapoor …..Petitioner/Defendant.

Versus

Murtu Devi …..Respondent/Plaintiff.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting?

1

Yes

For the Petitioner : Mr.Rajneesh K.Lal, Advocate.

For the Respondent : Mr.B.S.Attri, Advocate.

Tarlok Singh Chauhan, Judge.

This petition under Article 227 of the Constitution of India is

directed against the order passed by the learned District Judge, Kullu,

on 21.11.2013 whereby he affirmed the order dated 22.05.2013 passed

by the learned Civil Judge (Junior Division), Manali, District Kullu, and

allowed the application filed under Order 39 Rule 1 and 2 CPC for grant

of injunction filed by the applicant and at the same time dismissed the

application preferred under Order 39 Rule 4 CPC.

2. The brief facts of the case are that the respondent-plaintiff

filed a s uit for declaration and injunction restraining the

petitioner/defendant from raising any sort of construction over the suit

land comprised in Khasra Nos. 877 and 878, Khatauni No.10 of Khata

No.10, measuring 0 -04-49 hect. and land measuring 0 -02-85 hect.

comprised in Khasra No.876 contained in Khatauni No.168 of Khata

No.107, situated at Muhal Parsha Phati Shaleen Kothi, Manali, tehsil

Manali, District Kullu. It was alleged that the suit land was previously

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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owned and possessed by Dinu Ram to the extent of ½ share and S/Sh.

Chetu and Dhalu, both in equal shares to the extent of ½ share. It was

alleged that the petitioner was successor of Dinu and he in connivance

with the revenue officials wrongly got the suit land entered in his

exclusive possession. It w as stated that suit land was joint and

possessed by the respondent to the extent of 1/4 share but under the

guise of wrong revenue entries, the petitioner without getting the suit

land partitioned had started raising construction over the suit land in

June, 2012, while he had no right to raise the said construction till the

partition was effected because this was the most valuable portion of the

suit land on the National Highway.

3. The petitioner opposed the application by filing the reply

wherein it was alleged that the application was not maintainable. It was

also alleged that the respondent was not joint owner in possession of

the suit land and claimed exclusive possession. It was also alleged that

the petitioner started raising construction in February, 2012 and had

spent more than `7 lacs on the construction thereof. The petitioner

denied the possession of the respondent over the suit land and further

claimed the revenue entries to be correct.

4. The learned trial Court after perusing the revenue records

which reflected Dinu, Chetu and Dhalu to be the owners of the suit land

came to the conclusion that the respondent herein was co-owner of the

suit land being daughter of Dhalu.

5. Aggrieved by the order passed by the learned trial Court,

the petitioner preferred an appeal before the learned District Judge,

Kullu, who endorsed the findings of the learned trial Court and

dismissed the appeal.

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6. It is against these orders that the present petition has been

filed before this Court on the ground that the orders passed by the

learned Courts below are factually and legally incorrect and, therefore,

not sustainable in the eyes of law. It is further contended that since the

petitioner is in exclusive occupation of the land in dispute right from the

year 1992 when he purchased the same from Raj Kumar and half

share from Keshav Ram, then there was no question of holding the

respondent to be a co-owner and granting injunction. Lastly, it is

contended that the learned Courts below have granted a blank stay on

the entire suit land which is in exclusive possession of the petitioner

and said orders cannot go on indefinitely because no suit for partition till

date has been filed by the respondent which clearly reflects on her

conduct.

7. I have heard learned counsel for the parties and have gone

through the records of the case. Shri Lal, learned counsel for the

petitioner, has placed strong reliance on the copy of jamabandi for the

year 2000-01 to contend that the petitioner is in exclusive possession of

Khasra No.876 and, therefore, no injunction could have been granted

by the learned Courts below.

8. I have perused the copy of jamabandi which, no doubt,

shows the petitioner to be in exclusive possession of the suit land over

Khasra No.876, but the question is that would that give him a right to

use it exclusively, particularly, when the respondent/plaintiff claims

herself to be the co-sharer of the suit land. Infact, it has been

specifically observed by the learned lower appellate Court that there is

no dispute that the suit land is joint between the parties. It has further

been observed that the respondent/plaintiff is co-sharer to the extent

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of 1/4

th

share, whereas, petitioner/defendant is co-sharer to the extent

of ½ share. These findings have been recorded after taking into

consideration the pleadings of the parties as also on the basis of the

jamabandi available on the record. The respondent/plaintiff has

specifically pointed out that the petitioner/defendant is going to raise

construction over the best and valuable portion of the suit land which is

adjacent to the National Highway. Since, the parties are, prima facie,

proved to be the co-owners of the suit land, the question which,

therefore, falls for consideration is as to whether the petitioner can be

allowed to do an act over the joint land which may cause substantial

loss or injury to the other co-sharers.

9. Property held in common, by two or more persons,

whatever be its nature or origin, is said to be joint property and the

owners thereof joint owners. Joint property envisages a community of

interest (ownership) and a commonality of possession vested in the

entire body of owners called co-sharers/joint owners. This body of

owners is joint, both in possession and in ownership of the property and

every co-sharer shall be owner in possession of every inch of the joint

estate. Inherent in his status as a co-sharer/joint owner and flowing

from his status as a joint owner or a co-sharer of the joint property is the

right to assert ownership with respect to every part and parcel of the

joint property. The status as a co-sharer would be preceded by a

tangible act of conferring proprietary status, whether by way of

membership of a co-parcenary or by devolution of interest, pursuant to

inheritance or by assignment of property by sale etc.

10. A co-sharer asserts joint title and possession even, where

other co-sharers/joint owners are in separate possession of different

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parcels of land and as a natural consequences, a co -sharer in

possession of a specific area of joint property possesses the property

for and on behalf of all other co-sharers/joint owners. Co-sharers may

and often do for the purpose of better management of the joint estate

hold separate possession of parcels of joint land. This separation of

possession, without a corresponding intent, to sever the joint status of

the community of joint owners does not confer a right upon a co-sharer

in separate possession to assert his separate ownership. A joint owner,

therefore, would be owner of a specific share in the entire joint property

but would not be entitled to claim separate ownership of any specific

and particular portion of the joint property till such time, as the property

remains joint.

11. A joint owner/co-owner, just as an individual owner, has an

inherent right to alienate the joint property, limited to the extent and the

nature of his share holding. Upon transfer of his share or a part thereof,

a co-sharer transfer only such rights as vest in him as a joint owner,

namely, his specified share or a part thereof in the community of joint

owners with commonality of possession. A vendee from such a joint

owner or a co-sharer would, therefore, receive the property so

transferred, with all the rights and liabilities that vested in his vendor,

namely, a right to assert a community of interest (ownership) and a

commonality of possession in the entire joint estate and alongwith the

entire body of joint/co-owners. This conclusion draws sustenance from

Section 44 of the Transfer of Property Act which reads as under:

“44. Transfer by one co-owner. – Where one of two or more co-

owners of immovable property legally competent in that behalf

transfers his share of such property or any interest therein, the

transferee acquires as to such share or interest, and so far as

is necessary to give, effect to the transfer, the transferor’s right

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to joint possession or other common or part enjoyment of the

property, and to enforce a partition of the same, but subject to

the conditions and liabilities affecting at the date of the transfer,

the share or interest so transferred.”

12. The legal relationship between co-owners is not regulated

by any statute. It is governed by judicial decisions, and the principles

laid down by judicial decisions are based on the principle of equity,

justice and good conscience.

13. In Kennedy versus De Trafford, 1897 AC 180 it was held

by the House of Lords that there was no fiduciary relation between

tenants in common of real estate as such; nor could one tenant in

common of real estate by leaving the management of the property in

the hands of his co-tenant impose upon him an obligation of a fiduciary

character.

14. The statute (4 Ann. c. 16, Section 27) has long been

repealed; but the principle under lying it has been adopted as a part of

the common law of England in Britain as well as in countries which

have adopted the English common law.

15. In India also the principle of the English common law on

the point has been adopted by the Judges on grounds of justice, equity

and good conscience.

16. It is well settled that a co-owner merely as a co-owner is

not an agent for the other co-owners: [“See Abu Shahid v. Abdul

Hoque, 1940 1 ILR (Cal) 110. But he may become an agent for the

others by a contract, express or implied.

17. In Sukh Dev versus Parsi and others AIR 1940 Lahore

473, a Division Bench of Lahore High Court held that a co-sharer, who

is in exclusive possession of any portion of a joint Khata can transfer

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that portion subject to adjustment of the rights of the other co-sharers

therein at the time of partition and that the other co-sharers’ rights will

be sufficiently safeguarded if they are granted a decree by giving them

a declaration that the possession of the transferees in the land in

dispute will be that of a co-sharer(s), subject to adjustment at the time

of partition. It is apt to reproduce the following observations:-

“The sole point for decision is whether a cosharer in a joint

holding, who is in exclusive possession of a certain plot of land,

has a right to sell the same, and if so whether the transferee has

a right to remain in possession of such a plot until partition. It is

not disputed on behalf of the respondent that the defendants

could sell their share (or any fraction thereof) in the holding; but

it is contended that no cosharer is entitled to sell any specific

plot as he is not the sole owner thereof. In support of this

contention the learned counsel relied chiefly on three rulings of

the Allahabad High Court, viz. AIR 1920 All 111, AIR 1928 All

59 and AIR 1935 All 771.

The facts of the present cases seem to be however

distinguishable as the defendants in selling the plots did not

assert that they were exclusive owners thereof. The learned

Judge in Chambers has remarked in his judgment t hat there

was an assertion of exclusive title by the defendants in the

present suits by sale of specific plots. But this does not appear

to be correct. No sale deeds were executed; and it appears from

the mutations that the defendants merely purported to transfer

their interest in these plots as cosharers. As cosharers they had

a right to remain in possession of these plots till partition subject

to adjustment at the time of partition and they seem to have

transferred the same right to the vendees. This is indicated by

the fact that the sale is shown in the column of cultivation and

not in the column of proprietorship according to the rules

governing mutation proceedings. Moreover, the defendants

have made it clear in their written statements also that they only

claim to hold the plots sold “until partition subject to the rights of

the other cosharers and subject to adjustment at partition. If the

defendants merely transferred the plots subject to the rights of

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the other cosharers and subject to adjustment at the time of

partition,” it is difficult to see how the rights of the other

cosharers can be prejudiced in any way. It is well settled that if a

cosharer is in established possession of any portion of an

undivided holding, not exceeding his own share, he cannot be

disturbed in his possession until partition (see AIR 1938 Lah

465 and the other rulings cited therein).

As a result, it has been held that a cosharer who is in

such possession of any portion of a joint khata, can transfer

that portion subject to adjustment of the rights of the other

cosharers therein at the time of partition (see AIR 1925 Lah 518,

AIR 1929 Lah 168 and AIR 1939 Oudh 243. This view seems to

be consistent with the principle embodied in S. 44, T.P. Act,

regarding transfers of their ‘interest’ in joint property by

cosharers. The learned counsel for the respondent urged that

the defendants in these cases were not in possession for a very

long time. It appears however that they were in possession for

some years at least before the sales and there seems to be no

good ground for holding that they could not transfer the plots

unless their possession extended to 12 years or more as

suggested by the learned counsel. The defendants did not claim

to have acquired any adverse title. All that they claimed was that

they were entitled to remain in undisturbed possession till

partition. They were certainly in possession for some years

before the sales as stated above and the learned counsel for

the respondent has not been able to show that the other

cosharers had any right to disturb their possession until

partition.”

18. A Full Bench of the Allahabad High Court in Chhedi Lal

and another versus Chhotey Lal AIR (38) 1951 Allahabad 199

observed that while a co-sharer is entitled to object to another co-sharer

exclusively appropriating the land to himself to the detriment of the

other co-sharer, the question as to what relief should be granted was

considered in light of all earlier decisions and it was held as follows:-

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“25. As a result of the foregoing discussion, it appears to us that

the question of the right of co-sharers in respect of joint land

should be kept separate and distinct from the question as to

what relief should be granted to a co-sharer, whose right in

respect of joint land has been invaded by the other co-sharers-

either by exclusively appropriating and cultivating land or by

raising constructions thereon. The conflict in some of the

decisions has apparently risen from the confusion of the two

distinct matters. While therefore a co-sharer is entitled to object

to another co-sharer exclusively appropriating land to himself to

the detriment of other co-sharers, the question as to what relief

should be granted to the plaintiff in the event of the invasion of

his rights will depend upon the circumstances of each case. The

right to the relief for 'demolition and injunction will be granted or

withheld by the Court according as the circumstances

established in the case justify. The Court may feel persuaded to

grant both the reliefs if the evidence establishes that the plaintiff

cannot be adequately compensated at the time of the partition

and that greater injury will result to him by the refusal of the

relief than by granting it. On the contrary if material and

substantial injury will be caused to the defendant by the granting

of the relief, the Court will no doubt be exercising proper

discretion in withholding such relief. As has been pointed out in

some of the cases, each case will be decided upon its own

peculiar facts and it will be left to the Court to exercise its

discretion upon proof of circumstances showing which side the

balance of convenience lies. That the Court in the exercise of its

discretion will be guided by considerations of justice, equity and

good conscience cannot be overlooked and it is not possible for

the Court to lay down an inflexible rule as to the circumstances

in which the relief for demolition and injunction should be

granted or refused.”

19. The interse rights and liabilities of the co-sharers were a

subject matter of a Division Bench decision of the Punjab and Haryana

High Court in Sant Ram Nagina Ram versus Daya Ram Nagina Ram

AIR 1961 Punjab 528 and the following propositions inter alia were

settled:-

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“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

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 either 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 any body to dispute the arrangement without the

consent of others except by filing a suit for partition.”

20. In Jose C aetano Vaz versus Julia Leocadia Lucretia

Fernandes AIR 1969 Goa 90, it was held as under:-

“6. The upshot of the above discussion is that a co-owner,

though in possession of the joint property, has no right to

change the user of that property without the consent of the

other co-owners, and that if the aggrieved co-owner comes to

the Court with due promptness for restraining the defendant

from raising a building on the joint property the Court can very

legitimately decree prohibitory injunction, and if in the meantime

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any structure has been raised a decree for mandatory injunction

can also be granted.”

21. In Sachindra Nath Sarkar and others versus Binapani

Basu and others AIR 1976 Calcutta 277, the Calcutta High Court after

taking into consideration the earlier judgments summed up the position

of law as follows:-

“18. Consistent with the decisions of this Court, the position in

law is as follows:--

(a) the co-owner is not entitled to an injunction restraining

another co-owner from exceeding his rights i n the

common property, absolutely and simply be cause he is a

co-owner.

(b) before an injunction can be issued, the plaintiff has to

establish that he would sustain, by the act he complains

of some injury which materially would affect his position

or his enjoyment or accustomed user of the joint property

would be inconvenienced or interfered with.

(c) the question as to what relief should be granted is left

to the discretion of the Court in the attending

circumstances on the balance of convenience and in

exercise of its discretion the Court will be guided by

consideration of justice, equity and good conscience.”

22. In Gouri and others versus Dr. C.H. Ibrahim and another

AIR 1980 Kerala 94, on general principle it was laid down that if several

owners are in possession of an undivided property, none of them has a

right to appropriate to his exclusive use any portion of the property as

that will effect a compulsory partition in his own favour according to his

choice. It is pertinent to note the observation of the Court at para 11

extracted hereunder:-

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"11. The law is that the right of a co-owner to raise construction

or to make other improvement on the common property really

depends on the consent, express or implied, or on the

sufferance of the other co-owners. And when one co-owner

commences to build without seeking the consent of the others

and in spite of the protest to the construction, the possession, of

the co-owner raising the construction at once becomes wrongful

and the work will have to be stopped by an order of injunction.

The wrongful possession or an ouster by a co-owner is itself an

injury to the other co-owners and the latter would not he

required to prove any other injury to them in order to sustain

action for injunction. (See: Mitra's Co-ownership and Partition --

Fifth Edition pp. 127 & 128)."

23. The proposition as settled by the Division Bench of the

Punjab and Haryana High Court in Sant Ram’s case (supra) was

affirmed by a Full Bench decision of the Punjab and Haryana High

Court in Bhartu versus Ram Sarup 1981 PLJ 204.

24. In Rukmani and others versus H.N. Thirumalai Chettiar

AIR 1985 Madras 283, a Division Bench of the Madras High Court held

that a co-sharer cannot be allowed to cause prejudice to the other co-

sharer by putting up a substantial construction during the pendency of

the suit for partition filed by the co-sharer. It was held:-

“The respondent, being a co-sharer, cannot be allowed to cause

prejudice to the other co-sharers by putting up a substantial

construction during the pendency of a suit for partition filed by

the co-sharers."

25. In Prakash Chand Sachdeva versus The State and

another AIR 1994 SC 1436, the Hon’ble Supreme Court held:-

“3….when claim or title are not in dispute and the parties on

their own showing are co-owners and there is no partition, one

cannot be permitted to act forcibly and unlawfully and ask the

other to act in accordance with law….”.

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26. In Prakash S.Akotkar and others versus Mansoorkha

Gulabkha and others AIR 1996 Bombay 36, a learned single Judge of

the Bombay High Court held that a co-owner in possession of the

property is for and on behalf of other co-owners and the co-owners out

of possession were not in possession cannot claim injunction against

other co-sharers. The other co-sharer cannot claim injunction so as to

exclude the other co-owners from exercising their rights as co-owners.

It is apt to reproduce paras 4 and 5 of the report which reads thus:-

“4. Here, nature of injunction sought is of importance. The

plaintiff sought i njunction against all the defendants from

interfering with his exclusive possession. It should be noted that

these defendants include not only the first defendant who

executed the agreement to sell but also the three other sons of

Noor Jahan. It goes without saying that these sons have since

alienated the property to defendants 5 and 6. Even assuming

that even if the plaintiff who was put in possession by the first

defendant on the execution of agreement to sell, the question in

the context is as to the character of possession which the first

defendant could have conveyed, for the character of possession

has nexus with the prima facie case pleaded by the plaintiff.

Ordinarily, a co-owner has equal right and interest in the whole

property along with other co-owners. Every co-owner has right

of enjoyment and possession equal to that of the other co-

owners and he has interest even in every infinitesimal portion of

the property. In other words, the title and possession of a co-

owner is co-extensive with the interest of other co-owners.

Being co-owner the first defendant cannot have any right to

represent the title and possession of other co-owners. The

learned counsel for their 1st respondent relied on AIR 1971

Madh Pra 23 (Tikam Chand Lunia v. Rahim Khan Ishak Khan)

to contend that he is entitled to maintain the application for

injunction in such circumstances. Even assuming that the first

defendant has validly executed the agreement to sell, that

agreement to sell cannot create any interest in the property, it

can only create all obligation annexed to the ownership of the

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property. Therefore, the right of the respondent, if at all, is to

enforce the agreement to sell. The photo copy of the plaint

placed before me by Mr. Khapre, learned counsel for appellants,

shows that the plaintiff seeks enforcement of the agreement to

sell against all the six defendants. This certainly would mean

that the plaintiff admits the title not only of the first defendant,

but admits the title of defendants 2 to 4 - the brothers of 1st

respondent - as well as that of the alienees defendants 5 and 6

in favour of whom defendants 1 to 4 have since executed a

sale-deed. Necessarily it should follow that the plaintiff has no

hostile claim except a prayer to enforce specifically the

agreement to sell. Even the decision relied on by the learned

counsel for respondents, AIR 1971 Madh Pra 23, cited supra,

does not say that a stranger who obtained an agreement to sell

from one of the co-sharers is in the same position of a co-

owner. The learned counsel then relied on 1984 Mah LJ 915

(Nandkumar v. Laxmibai). There it is held, a person in

possession under S. 53-A of Transfer of Property Act is entitled

to maintain an application for injunction under O. 39, R. 1. There

can be no dispute as to the said proposition. In the context,

even if it is assumed that the plaintiff is in possession that

possession can only be of a co-owner. The learned counsel also

relied on a decision in AIR 1960 Ker 27 (Joseph v. John). All

that is held in the said decision is that when a co-owner

transfers the entire property as owner to a stranger the

possession of such stranger will become hostile to that of the

non-alienating co-owner. In this connection it is necessary to

refer to a later decision of the apex court as to the character of

possession of a co-owner in possession. In the decision in

Karbalai Begum v. Mohd. Sayeed AIR 1981 sc 77: 1980 All LJ

902 the Supreme Court observed, the legal position of a co-

owner in possession would be that of a constructive trustee on

behalf of the other co-sharer who is not in possession and that

right of the co-sharer would be deemed to be protected by the

trustee. Then a person in such a position cannot prima facie

without anything more unilaterally change the character of his

possession so as to confer a better title to his assignee, much

less on one in favour of whom he has executed only an

agreement to sell. Here the agreement to sell itself was in 1994.

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There is no case that the first defendant-the son of Noor Jahan -

was ever in hostile possession. In such circumstances, the

learned counsel for respondents cannot build up an argument

on the basis of such possession claiming that an alienee can

maintain an application under Order XXXIX, Rule 1 against the

non-alienating co-owner. The learned counsel for the 1st

respondent further relied on AIR 1958 Cal 614 (Paresh Nath

Biswas v. Kamal Krishna Choudhary). All that is held in that

decision is, upon transfer to a stranger of an undivided house by

a co-owner, the co-owner cannot claim joint possession along

with other co-owners under Section 44 of the Transfer of

Property Act. It is further held that upon a transfer to a stranger

of an undivided share of a family dwelling-house by a co-

sharers can maintain a suit for injunction for restraining the

stranger transferee from exercising any act of joint possession

in respect of the share transferred. This decision cannot help

the respondents.

5. As noticed, the character of possession of the plaintiff in the

circumstances can only be that of a co-owner even if the

possession passed under agreement to sell. The Division Bench

of Punjab High Court in the case of Sant Ram Nagina Ram v.

Daya Ram Nagina Ram, AIR 1961 Punj 528 has considered the

whole question as to the rights and liabilities of co-owners and

also the condition under which one could presume ouster. It is

held therein that a co-owner has an interest in the whole

property and also in every parcel of it; and that 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. Then it proceeds to hold that this condition will

prevail unless ouster is proved. With due regard to the aforesaid

facts and circumstances, particularly the fact that defendants 1

to 4 are governed by Mohammaden Law, there can be no doubt

that their interest is that of co-owners. The first defendants has

no right prima facie to bind the interest of defendants 2 to 4.

Having found so, the aliences of the defendants 1 to 4 who are

defendants 5 and 6 must be deemed to have stepped into

shoes of at least defendants 2 to 4 though prima facie the rights

of first defendant annexed with the obligation under the

agreement to sell. Having found the character of possession as

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co-owner, as indicated above, the only question that arises for

determination is, whether a co-owner, in possession is entitled

to an injunction of this nature against the other co-owners. Once

it is found that the possession of co-owner is for the on behalf of

other co-owner is for and on behalf of other co-owners, the

other co-owner cannot claim injunction of this nature so as to

exclude the other co-owners from exercising their right as co-

owners. Therefore the respondents/plaintiffs have no prima

facie case. Consequently on this short ground, the order of the

Civil Judge, Sr. Dn., is liable to be set aside. The order is

therefore set aside the the instant appeal is allowed. It needs

hardly he mentioned that the observations made in this order

are only for the purposes of disposal of the claim of the

respondents under Order XXXIX, Rules 1 and 2, Code of Civil

Procedure.”

27. In Bachan Singh versus Swaran Singh AIR 2001 Punjab

and Haryana 112,

a Division Bench of the Punjab and Haryana High

Court on consideration of judicial pronouncements on the rights and

liabilities of the co-sharers and their right to raise constructions to the

exclusion of the others was of the following opinion:-

“(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.”

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28. In Tanusree Basu and others versus Ishani Prasad

Basu and others (2008) 4 SCC 791, the Hon’ble Supreme Court was

dealing with the cases of co-sharers and it was held that a co-owner in

exclusive possession of the joint property would be entitled to an

injunction and it was held as under:-

“13. There cannot be any doubt or dispute as a general

proposition of law that possession of one co-owner would be

treated to be possession of all. This, however, in a case of this

nature would not mean that where three flats have been allotted

jointly to the parties, each one of them cannot be in occupation

of one co-owner separately.

14. We have noticed hereinbefore that the plaintiffs-appellants

themselves in no uncertain terms admitted that by reason of

mutual adjustment the parties had been in separate possession

of three flats, viz., flat Nos. 201, 202 and 301. If they were in

possession of the separate flats, plaintiffs as co-owners could

not otherwise have made any attempt to dispossess the first

respondent by putting a padlock. The padlock, according to the

first respondent, as noticed hereinbefore, was put by the

plaintiffs-appellants immediately after the appeal preferred by

them in the High Court was dismissed.

15. The padlock was directed to be removed by the learned Civil

Judge by an order dated 21.11.2006. We do not find any

illegality therein.

16. It is now a well-settled principle of law that Order 39, Rule 1

of the Code of Civil Procedure (Code) is not the sole repository

of the power of the court to grant injunction. Section 151 of the

Code confers power upon the court to grant injunction if the

matter is not covered by Rules 1 and 2 of Order 39 of the Code.

(See Manohar Lal Chopra v. Seth Hiralal AIR 1962 SC 527 and

India Household and Healthcare Ltd. v. LG Household and

Healthcare Ltd. (2007) 5 SCC 510).

17. Strong reliance has been placed by Mr. Banerjee on a

judgment of Bombay High Court in Bhaguji Bayaji Pokale & Ors.

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v. Kantilal Baban Gunjawate [1998 (3) CCC 377 (Bom.)]

wherein it was held: (AIR p.117, para 8).

"8[7]. With regard to second substantial question of law,

i.e. the co-owner cannot claim an order of injunction

against another co-owner with regard to the property

owned jointly, the learned Counsel for the appellants had

relied upon the Apex Court's judgment reported in

Mohammad Baqar v. Naim-un-Nisa Bibi AIR 1956 SC

548 The Apex Court has very categorically held in para

No. 7 as under:

"7…….The parties to the action are co-sharers, and as

under the law, possession of one co-sharer is possession

of all co-sharers, it cannot be adverse to them, unless

there is a denial of their right to their knowledge by the

person in possession, and exclusion and ouster following

thereon for the statutory period."

It was observed : (AIR p.117, para 10)

"10….Similarly, the legal position that the co-owner or co-

sharer of the property can never claim ownership by

adverse possession of the other share. This is also a well

settled law."

18. We are concerned in this case with a question whether if a

co-owner was in specific possession of the joint property, he

could be dispossessed therefrom without the intervention of the

court. In this case, the first respondent is not claiming title of

adverse possession. The said decision has, therefore, no

application to the fact of the present case.

19. Reliance has also been placed by Mr. Banerjee on Abu

Shahid v. Abdul Hoque Dobhash AIR 1940 Cal 363, Hemanta

Kumar Banerjee and others v. Satish Chandra Banerjee and

others AIR 1941 Cal 635 and Jahuri Sah and others v. Dwarika

Prasad Jhunjhunwala AIR 1967 SC 109.

20. In Abu Shahid (supra), the question which arose for

consideration was in regard to plea of ouster vis-a-vis rendition

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of accounts. We are not concerned with such a question in this

case.

21. In Hemanta Kumar Banerjee (supra), the question which

arose for consideration was as to whether the rule against

partition amongst co-sharers is an elastic one. Again, we are not

concerned with such a question here.

22. In Jahuri Sah (supra), this Court opined: (AIR p.112, para

12)

"12. What we have to consider then is whether the

contract for payment of compensation is not enforceable.

It is no doubt true that under the law every co-owner of

undivided property is entitled to enjoy the whole of the

property and is not liable to pay compensation to the

other co-owners who have not chosen to enjoy the

property. It is also true that liability to pay compensation

arises against a co-owner who deliberately excludes the

other co-owners from the enjoyment of the property. It

does not, however, follow that the liability to pay

compensation arises only in such a case and no other.

Co-owners are legally competent to come to any kind of

arrangement for the enjoyment of their undivided

property and are free to lay down any terms concerning

the enjoyment of the property. There is no principle of law

which would exclude them from providing in the

agreement that those of them as are in actual occupation

and enjoyment of the property shall pay to the other co-

owners compensation"

These observations do not assist the case of the appellants. If

parties by mutual agreement entered into possession of

separate flats, no co-sharer should be permitted to act in breach

thereof.”

29. In Jai Singh and others versus Gurmej Singh 2009 (1)

SLJ (SC) 714, the Hon’ble Supreme Court was seized of a matter

involving interse rights and liabilities of a co-sharer and it upheld the

principles as laid down in Bhartu’s case (supra).

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Before proceeding further and after having noticed the

judgments of various Courts, let me now make a note of the position of

law as laid down by this Court.

30. In Parduman Singh and another versus Narain Singh

and another 1991 (2) SLC 215, it was held that a co-sharer has no

right to make construction over the land in dispute which is joint interse

the parties to the disadvantage of the opposite party and it is not proper

for the Court to allow the continuation and completion of the

construction on the condition that it would be demolished if it is

ultimately found that the party raising the construction had no right or

had exceeded his right in raising the construction.

31. In Nagesh Kumar versus Kewal Krishan AIR 2000 HP

116, this C ourt after relying upon Parduman Singh’s case (supra),

held as follows:-

“16. A co-sharer is entitled to claim Injunction when another co-

sharer threatens to exclusively appropriate joint land to himself

to the detriment of other co-shares by constructing a structure

thereon.

17. In view of the above, the plaintiff has made out a case for

grant of temporary injunction as prayed for by him and as was

granted by the learned Senior Sub-Judge.

18. In a cause when a co-sharer has sued for permanent

prohibitory Injunction restraining the other co-sharer from raising

any construction over the land jointly owned by them, it Is not

just and proper to permit the co-sharer against when the relief of

injunction has been claimed, to continue/ complete construction

of a house/structure on such land.

19. The Apex Court while dealing with a similar situation in

Harish Chander Verma v. Kayastha Pathshala Trust, 1988 (1)

JT (SC) 625 has held as follows :

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"I.....In appeal against the decree for permanent

injunction the High Court by the impugned order has

permitted the defendant-respondent herein to raise

construction subject to the condition that In the event of

the decree being affirmed the construction shall have to

be pulled down.

2. Apart from the convenience the parties and equity

arising in the facts of the case, a larger principle is

involved in the matter. On the face of a decree for

permanent injunction is it appropriate for the appellate

Court to allow it to be nullified before the appeal is

disposed of. We are of the view that the answer has to be

in the negative."

20. Similar view has been taken by this Court in Parduman

Singh v. Narain Singh, 1991 (2) Sim LC 215.”

32. In Shiv Chand versus Manghru and others, 2007 (1)

Latest HLJ (H.P.) 413, this Court has held as follows:-

“7. The view taken by the first appellate Court that one of the

persons in joint possession can raise construction on a portion

of the joint property provided the area sought to be covered

does not exceed his share, is contrary to the proposition of law.

The law is very clear that a person in joint possession of

immovable property cannot change the nature of the suit

property unless the property is partitioned or the other persons

in joint possession consent to such change in the nature of the

property….

8. Coming to the next question, the view taken by the learned

first appellate Court is again erroneous. Persons in settled joint

possession of immovable property are supposed to respect the

right to joint possession of each other in the same fashion and

manner as the owners in joint possession. Therefore, the view

taken by the learned first appellate Court that both the parties

being encroachers, either of them can change the nature of the

property without partition or without consent of the other is

contrary to well settled proposition and principles of law. Hence,

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this question is also answered in favour of the plaintiff-

appellant.”

33. In Payar Singh versus Narayan Dass and others 2010

(3) Shim. LC 205, after taking note of Nagesh Kumar and Parduman

Singh’s cases, this Court held as follows:-

“12.The respondents in the written statement have specifically

pleaded that parties are in separate possession under family

arrangement. The petitioner has also constructed his house on

the joint land. It is not the stand of the petitioner that

respondents are raising construction on an area which is more

than their share. The case of the respondents is that petitioner

has constructed his house on a better portion of the land. The

under construction house of the respondents is away from the

National Highway 21 whereas the house of the petitioner abuts

N.H. 21. The respondents have placed on record on the file of

revision photographs of under construction house of the

respondents. The photographs indicate sufficient gap between

the already constructed house of petitioner and under

construction house of the respondents over which even slab has

been placed. It is the case of the respondents in written

statement that they are in separate possession of the land in

family arrangement. This fact has not been denied by filing

replication. The respondents are claiming possession over the

suit land under family arrangement i.e. with the consent of the

petitioner over which they are raising construction. The

respondents have thus established prima facie case, balance of

convenience, irreparable loss in their favour. In these

circumstances, no fault can be found with the impugned

judgment. In revision the scope is limited as held in The

Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar,

Hyderabad and another Vs. Ajit Prasad Tarway, Manager

(Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar,

Hyderabad, AIR 1973 SC 76. The suit is for permanent

prohibitory and mandatory injunction. The rights of the parties

will be decided in the suit. It has not been established that the

view taken by the learned District Judge does not emerge from

the material on record.”

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34. In Kalawati and another versus Sudhir Chand and

others 2011 Law Suit (HP) 692 (CMPMO No.193 of 2010) decided on

13.04.2011, after taking into consideration the ratio of the judgment in

Bachan Singh’s case (supra), this Court held as follows:-

“8.Keeping in view the fact that substantial construction had

been raised even before the suit had been filed and defendants

have collected huge amount of material on the spot, in my view

no irreparable harm and injury will be caused to the Plaintiffs in

case such construction is allowed to go on. On the other hand,

if the Defendants are permitted to continue to raise the

construction, the interest of the Plaintiffs can be protected by

making it clear that the construction raised shall be subject to

the final decision of the suit and in case the suit is decreed in

favour of the Plaintiffs then Defendants will either demolish the

portion in excess of their share or shall hand over the same to

the Plaintiffs without asking for any compensation for building

costs.”

35. In Brij Lal versus Puran Chand, 2011 (1) Him. L.R. 80, it

has been held as under:-

“8. The partition proceedings are pending before the competent

authority. Though the defendant as DW-1 has made reference

about some family partition, however, he has neither given any

date nor month or year when the family partition took place. He

has admitted that the suit land measuring 11-12 bighas was

joint of the parties. In his written statement, he has claimed not

only that he was in exclusive possession, but also exclusive title

to suit land to the exclusion of plaintiff and other co-sharers.

Since the land in question has not been partitioned, the

defendant could not be permitted to raise any construction

thereon without working out any arrangement or with consent of

the co-owners. If he wanted to raise any construction, he ought

to have sought consent of the other co-owners since the land

was joint. The learned District Judge has rightly relied upon

Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram, AIR 1961,

Punjab, 528 and the judgment rendered by this Court in Prithi

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Singh Vs. Bachitar Singh, 1969 DLT 583 while dismissing the

appeal.”

36. In Amin Chand and another; Chet Ram versus Chet

Ram and others; Amin Chand and others in Civil Revision No.153

and 161 of 2005 decided on 07.04.2010, after making note of the

judgments in Bachan Singh and Nagesh Kumar’s ca ses (supra), it

was held as under:-

“12. It is true that in case the land is jointly owned and

possessed by the plaintiff and other co-sharers and has not

been partitioned, the plaintiff would have been held entitled to

the grant of injunction in his favour restraining the defendants

from changing the nature of the suit land or raising any

construction till partition. However, that can be so in case the

land had been sold by some other person than the plaintiff

himself who did not place any restriction in the sale deed on the

powers of defendant No.1 to raise construction till partition or

made a reference as to which particular portion of the land,

whether abutting the State Highway or on the backside, has

been sold to defendant No.1. The sale deed in question is dated

26.6.1995 executed by the plaintiff in favour of defendant No.1

and a perusal of the same shows that it has been clearly

mentioned that four biswas of land has been sold to defendant

No.1 who shall be entitled to use it in any manner he likes and

the possession has also been delivered to him. In case the

plaintiff wanted to put some restrictions on the powers of

defendant No.1 to raise construction or he had an idea that

defendant No.1 may not encroach the whole land abutting the

State Highway out of the total share of the plaintiff and other co-

owners, he could have placed a restriction upon the powers of

the defendant to raise construction over this particular portion of

the land. It may be that the plaintiff represented to the defendant

and showed him the land abutting the State Highway and once

the defendant had purchased the land and the possession had

been given to him of four biswas of land out of the total land and

no restriction had been placed as to his powers to raise

construction till partition. There is no specification as to whether

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the land abuts the State Highway or otherwise. In equity, the

plaintiff cannot be held entitled to file the suit for an injunction

and claim the relief of temporary injunction till the matter is

settled by a civil court. In equity, the plaintiff is not entitled to

temporary injunction in his favour till the question is decided by

the civil court as to which of the parties was in possession or

which particular portion of the land was sold to defendant No.1

and which land was given in possession to defendant No.1 in

pursuance of the sale deed effected by the plaintiff. All these

questions are left open to be decided by the civil court but for

the present, in equity, the plaintiff cannot be said to be entitled

to the relief of an injunction in his favour. This is particularly so

when the defendant has pleaded that he has raised construction

over the suit land by spending Rs.1.00 lac, as pleaded in the

written statement. The defendant shall not encroach or cover

more land than what construction has been raised by him

already, which he will be entitled to complete till the disposal of

the suit. However, the construction being so raised by the

defendant shall be subject to the rights of other co-sharers on

partition and in case the defendant raises any construction

beyond his share or that portion falls to the share of another co-

sharer on partition, defendant No.1 will have to demolish this

construction which shall be raised by him at his own risk. This

will be s ubject to adjustment at the time of partition to which

either of the parties are entitled to apply and get the appropriate

relief.”

37. In Jagdish Ram versus Vishwamitter and others Latest

HLJ 2012(HP) 1427, this Court held that the possession of 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. Mere occupation of larger

portion or even of entire joint property does not amount to ouster as the

possession of one is deemed to be on behalf of all. The remedy of a

co-owner who is out of possession and not in possession is by way of

suit for partition or for actual joint possession.

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38. In Munshi Lal versus Rajiv Vaidya 2013 (2) H im.L.R.

1172, this Court held as follows:-

“13. The petitioner at the most is a co-sharer. He cannot change

the nature of the suit land without the consent of other co-

sharers and without partitioning the suit land. The petitioner at

this stage has failed to identify his possession on specific 0-14-

09 bigha land out of the suit land. The two courts below after

appreciation of material on record have granted interim

injunction in favour of respondent. It cannot be said that

decisions taken by the two courts below are without jurisdiction

or suffer from error of law, which require correction by way of

petition under Article 227 of Constitution of India. There is no

merit in the petition.”

39. I myself in Prabhu Nath and another versus Sushma

2014 (2) Shim. LC 1003 after taking into consideration the ratio of

judgments in Nagesh Kumar, Shiv Chand and Brij Lal’s cases

(supra) held as under:-

“3. Admittedly the parties are co-owners and it is settled that

every co-owner has every right over each inch of land. The

possession of one co-sharer is possession of all, and therefore,

the co-sharer cannot change the nature of the suit land to the

detriment of another co-owner unless the land is partitioned or

can do so with the consent of other co-sharers. This view has

been consistently followed in a number of judgments by this

Court.”

40. In Joginder Singh & others versus Suresh Kumar and

others AIR 2015 HP 18, after taking into consideration the judgments

in Nagesh Kumar and Bachan Singh’s cases, it was held:-

“19. The defendant admittedly has raised the construction up to

plinth level over a portion of the suit land, without getting the

same partitioned. He, by doing so, has threatened to evade the

rights of other co-sharers including the plaintiffs therein. He,

being not in exclusive possession of the vacant suit land over

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which he intends to raise the construction, hence cannot be

permitted to go ahead with construction in violation of the rights

and interest of other co-sharers therein.”

41. The exposition of law as enunciated in the various

judgments referred above including those of this High Court, insofar as

the rights and liabilities of the co-owners is concerned, gives rise to the

following propositions:-

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

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 either 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 any body to dispute the arrangement without the

consent of others except by filing a suit for partition.

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8. The remedy of a co-owner not in 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-owners, 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 special damage has

been suffered.

42. It can further be safely concluded that co-owners hold

property by several and distinct titles but by unity of possession. Actual

physical possession is not indispensable, the requirement being of the

right to possession of the common property.

43. As a corollary to the aforesaid right, any co-owner, in the

absence of any agreement to the contrary, has a right to enter upon the

common property and take possession of the whole, subject to the

equal right of the other co-owners with whose right of possession he

has no right to interfere.

44. A co-owner’s possession of the common property is not

prima facie adverse against another co -owner, because such

possession is considered as one on behalf of all the co-owners, except

when there is clear proof of ouster or assertion of a hostile title.

45. As each co-owner is entitled to possess every bit of the

common property and is not restricted to enjoyment according to his

share so long as he does not deny to the other co-owners an equal

right of possession and enjoyment of the common property, he is under

no obligation either to account for or to pay compensation to such co-

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sharers. The matter is different if there is objection from the other co-

sharers and no amicable arrangement is arrived at. That would equally

be the case where there is ouster or denial of the title of the other co-

owners and an assertion of a hostile title in himself.

46. On consideration of the various judicial pronouncements

and on the basis of the dominant view taken in these decisions on the

rights and liabilities of the co-sharers and their rights to raise

construction to the exclusion of others, the following principles can

conveniently be laid down:-

i) a co-owner is not entitled to an injunction restraining

another co-owner from exceeding his rights in the common

property absolutely and simply because he is a co-owner

unless any act of the person in possession of the property

amounts to ouster prejudicial or adverse to the interest of

the 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.

(v) before an injunction is issued, the plaintiff has to establish that

he would sustain, by the act he complains of some injury which

materially would affect his position or his enjoyment or an

accustomed user of the joint property would be inconvenienced

or interfered with.

(vi) the question as to what relief should be granted is left to the

discretion of the Court in the attending circumstances on the

balance of convenience and in exercise of its discretion the

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Court will be guided by consideration of justice, equity and good

conscience.

47. The discretion of the Court is exercised to grant a

temporary injunction only when the following requirements are made

out by the plaintiff:-

(i) existence of a prima facie case as pleaded, necessitating

protection of the plaintiff’s rights by issue of a temporary

injunction;

(ii) when the need for protection of the plaintiff’s rights is

compared with or weighed against the need for protection

of the defendant’s right or likely infringement of the

defendant’s rights, the balance of convenience tilting in

favour of the plaintiff; and

(iii) clear possibility of irreparable injury being caused to the

plaintiff if the temporary injunction is not granted.

In addition, temporary injunction being an equitable relief,

the discretion to grant such relief will be exercised only when the

plaintiff’s conduct is free from blame and he approaches the Court with

clean hands.

48. A perusal of the order passed by the learned trial Court as

also the appellate Court would go to show that both the Courts below

have taken into consideration not only the pleadings, but also the law

on the subject and thereafter granted the injunction. This Court while

exercising powers under Article 227 of the Constitution of India will not

normally interfere with the discretion of the Courts below and substitute

its own discretion except where the discretion has been shown to have

been exercised by the Courts below in an arbitrary, capricious or in a

perverse manner or where the Court had ignored the settled principles

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of law regulating grant or refusal of the interlocutory injunction. This

Court will also not re-assess the material and seek to reach a

conclusion different from the one reached by the Courts below, if the

one reached by the Courts below was reasonably possible on the

material placed before it. Further, this Court would not normally be

justified in interfering with the e xercise of discretion solely on the

ground that if it had considered the matter at the trial stage, it would

have come to a contrary conclusion. If the discretion has been

exercised by the learned Courts below reasonably and in a judicious

manner, then this Court would not take a different view and interfere

with the discretion exercised by the Courts below.

49. Reverting to the facts, it would be seen that the petitioner

on the sheer strength of his possession has claimed a right to raise

construction over the suit land and has infact even added a flavour of

adverse possession by claiming that he is in peaceful and uninterrupted

possession of the suit land. The tone and tenor of the reply filed to the

application under Order 39 Rule 1 and 2 CPC, coupled with the

contents of the application separately preferred by the petitioner under

Order 39 Rule 4 CPC does indicate that the petitioner is virtually

claiming ouster of the respondent, who admittedly is a co-owner of the

property. His exercise of rights is inconsistent with the rights of other

co-owner. The petitioner has denied the rights of the other co-owner.

Once it is so, then the petitioner cannot claim a right to raise

construction without the consent of the other co-sharer nor does he

have any right to put up any portion of the joint holding to such a use

which is detrimental to the interest of the other co-sharer or may

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amount to change of user of the property or ouster of the other co-

sharer from that portion.

50. Having said so, I find no merit in this petition and the same

is dismissed with costs assessed at `25,000/-.

(Tarlok Singh Chauhan),

Judge.

June 24, 2015.

(krt)

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