Punjab and Haryana High Court: Alka Sarin, J., while dismissing the appeal preferred by the plaintiff against the judgments passed by the trial court and the appellate court held that when a suit land is not partitioned and the parties to the suit are the co-sharers and co-owners, each and every co- sharer and co-owner is in possession of every inch of land.
Plaintiff and his brothers were in exclusive possession as co-sharers of the suit land for more than the last 30 years as co-sharers. The brothers of the plaintiff reside in England and the plaintiff is cultivating their share in the suit land but the suit land along with other land joint with owners.
The plaintiff alleged that the defendants started threatening him to interfere in his lawful, peaceful, and exclusive possession of the said land, illegally and forcibly.
The defendants alleged that by way of mutual adjustment, the defendant and their brothers have been in possession of a certain portion of the land wherein they constructed their residential houses. It was also stated that the defendants have kept a wide space from the eastern portion of land comprised in the portion of the land on the eastern side in which the gates of the residential houses of the defendant open and they have been using the space out of southern portion for approach as a passage to their residential house without any sort of obstruction for last more than 20 years as a matter of right and by way of easement of necessity.
The defendant had also filed a counter-claim for a decree of permanent injunction so as to restrain the plaintiff from raising any sort of construction or putting any sort of obstruction. The plaintiff contested this counter-claim and filed a written statement.
Observation and Analysis:
The Court observed that when “A joint owner cannot prevent by injunction the usage of a portion of the joint property by another co-owner unless this amounts to wastage or destruction or injury to the other co-owners. Every co-owner has a right to use the joint property in a husband-like manner not inconsistent with similar rights of the co-owners.”
The plaintiff, in the opinion of the Court, failed to demonstrate that he had sole possession of the suit’s land. The counsel for the plaintiff argued that the plaintiff was in possession of the land under dispute by citing the jamabandi and the khasra. However, the Courts below found that the evidence of the plaintiff was rebutted by the defendant-respondents and even the Local Commissioner had submitted a report to which no objections were filed, the Court noted.
The plaintiff-appellant failed to establish his exclusive possession over the suit land, and there was no determination that any action taken by the defendants was harmful to the interests of the other co-owners in the joint land, so the Bench was unable to apply the reasoning of the Full Bench in Bhartu v. Ram Sarup, 1981 PLJ 204 to the facts of the present case.
Thus, without finding any illegality in the judgments passed by the trial court and the appellate court, the Court dismissed the Appeal.
[Tarsem Singh v. Major Singh, RSA-5381-2019 (O&M), decided on 25-07-2022]
*Judgments by: Justice Alka Sarin
Advocates who appeared in this case :
Mr. Rajinder Sharma, Advocate, Counsel for the Appellant.