Tarlok Singh Chauhan, J.@mdash1. This petition under Article 227 of the Constitution of India is directed against the order passed by learned Additional District Judge, Chamba, whereby affirmed the order passed by Civil Judge (Senior Division) Chamba in an application filed under Order 39 Rules 1 and 2 C.P.C.
2. Brief facts leading to filing of the instant petition are that the plaintiff/respondent filed a suit for prohibitory injunction restraining the defendant/petitioner, his agents, servants and workmen from raising any forcible and illegal construction over the best, valuable and excessive portion of the joint suit land comprised in Khatta Khatauni No. 863/967, Khasra No. 3268, 3298, 3311, 10045/3312, 3410, 3411, 3414 Kita 7 measuring 483-04 square yards, situated at Mauza Chamba Shehar-II, Pargana Panjla, Tehsil and District Chamab, H.P. till it is partitioned by meets and bounds. Along with the suit an application for injunction under Order 39 Rule 1 and 2 C.P.C. for restraining the respondents from raising any forcible or illegal construction was also filed.
3. It was alleged that the suit land was joint amongst the parties and no partition had taken place and therefore, no co-sharer was competent to raise construction or change the nature of the suit land in any manner whatsoever. But still the petitioner with a view to grab the best portion of the joint land had started raising construction of the house and he be restrained from doing so.
4. It the written statement as also reply to the application under Order 39 Rule 1 and 2 C.P.C., the petitioner alleged that the respondent/plaintiff along with her children and one Sh. Ramesh Kumar were recorded as joint tenants to the extent of 2/8 shares, however they had already covered more than their share in the entire land in the shape of using it as grave yard for burying their parents and husband of the present plaintiff. It was further alleged that the property had already been partitioned during the life time of Sh. Brij Lal. It was further alleged that the share of the plaintiff/respondent at best is 2/8th share, whereas the petitioner is the owner of 1/2 share of the suit land.
5. The learned trial Court allowed the application by holding that "it is well settled law that none of the co-sharers can raise construction or change the nature of the land till the same is partitioned by regular process of law or without the consent of other co-sharer." This observation was made after placing reliance upon the judgment of Hon''ble Punjab and Haryana High Court in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, , AIR 1961, Punjab 528 and Praduman Singh v. Narain Singh, 1992 (2) SLJ 897.
6. On appeal being carried out to the learned lower Appellate Court, the order passed by learned trial Court was affirmed, that too, by again placing reliance on Sant Ram Nagina''s case supra, as also relying upon the judgment passed by this Court in Brij Lal v. Puran Chand, 2011 (1) Him L.R. 80 and another judgment in Roop Chand v. Indra , AIR 1997 MP 200, to conclude that till and so long there was no proof of partition of family settlement, a co-sharer cannot be permitted to raise construction over the joint land.
I have heard the learned counsel for the parties and gone through the records of the case.
7. There appears to be a total misconception regarding the preposition of law involved in the present case. There can be no strait jacket formula to hold and conclude that in the absence of partition, a co-sharer cannot under any circumstance be permitted to raise construction over the joint land. This aspect of the matter has been considered by me in CMPMO No. 52 of 2014, titled as Ashok Kapoor v. Murthu Devi, decided on 24.6.2015 in the following manner:--
"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 coparcenary 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 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 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 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 that 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 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:--
"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:--
"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 Caetano 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 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 in 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:--
"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....".
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 injunction 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 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. 53A 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. 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 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 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."
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. 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-�-vis rendition 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).
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 Court 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:
"1. ...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, 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 v. 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."
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 v. Daya Ram Nagina Ram, , AIR 1961, Punjab, 528 and the judgment rendered by this Court in Prithi Singh v. 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 cases (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 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 subject 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.
38. In Munshi Lal versus Rajiv Vaidya 2013 (2) Him.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 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.
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-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 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."
8. It would be evident from the aforesaid discussion that there is no invariable rule that until and unless partition is carried out, a co-sharer under no circumstance can be permitted to raise construction over the land which is joint inter se the parties. The lis will have to be decided on basis of the facts and circumstances obtaining in a particular case.
9. Having said so, I find no difficulty in concluding that the orders passed by the learned Courts below are not in tune with the law. Consequently, the same are ordered to be set aside and the application under Order 39 Rule 1 and 2 CPC is directed to be heard afresh strictly in accordance with the parameters laid down by this Court in Ashok Kapoor''s case supra.
Accordingly, the present petition is allowed in the aforesaid terms, leaving the parties to bear their costs.
