Bal Kishan vs Ram Singh and others

M.L. Singhal, J.—Vide agreement to sell dated 11.6.1996, Banwari Lal agreed to sell land measuring 17 Kanal which is equivalent to 3/128 share of land measuring 726 Kanal 12 Maria to Bal Kishan and Jagdish Parshad for a sum of Rs. 3 lacs. A sum of Rs. 1.70 lacs was received by him on 11.6.1996. Sale deed was to be got registered on 27.5.1997. Remaining amount of Rs. 1.30 lacs was to be paid at the time of the registration of the sale deed. Banwari Lal Defendant was co-sharer in land measuring 726 Kanal 12 Maria. He had 3/128 share which was equivalent to 17 Kanal. Banwari Lal, however, did not execute sale deed per that agreement in favour of Bal Kishan and Jagdish Parshad. Bal Kishan and Jagdish Parshad accordingly filed Civil Suit No. 603 of 1997 against Banwari Lal in the Court of Civil Judge (Junior Division), Narnaul for specific performance which was decreed ex parte on 28.7.1999. Banwari Lal did not execute sale deed in favour of Bal Kishan and Jagdish Parshad nor did he give possession to Bal Kishan and Jagdish Parshad. Bal Kishan and Jagdish Parshad deposited the remaining amount of Rs. 1.30 lacs in the Court, Bal Kishan put in execution on 1.12.1998 for the execution of that decree in the Court of Civil Judge (Junior Division), Narnaul.

During the pendency of that execution petition, Bal Kishan filed suit for permanent injunction against Ram Singh, Banwari Lal, Hindustan Petroleum Corporation Ltd. (contesting Defendants) and Jagdish Parshad (proforma Defendant) restraining Ram Singh and Banwari Lal from alienating any specific portion of land measuring 726 Kanal 12 Maria by way of sale, mortgage, gift or lease etc. without getting it partitioned and for another injunction restraining Ram Singh. Banwari Lal and Hindustan Petroleum Corporation Ltd. from raising construction on any portion of the land measuring 726 Kanal 12 Maria or any specific Khasra number thereof without getting the same partitioned. According to Bal Kishan. total area of land is 726 Kanal 12 Maria. Some part of this land is situated along Narnaul-Kotputli Road which is costlier. Ram Singh, Banwari Lai and Hindustan Petroleum Corporation Ltd. have colluded with each other and they wanted to assume possession of particular portion of the suit land without getting the same partitioned. If they succeed in taking possession of a particular portion, it would affect the rights of the Plaintiff. According to the Plaintiff (Bal Kishan), he and Jagdish Parshad have become co-sharers in land measuring 726 Kanal 12 Maria on account of that decree for specific performance in their favour and, therefore, they were within their right to restrain the alienation of any specific portion or specific Khasra number of that land by any other co-sharer to any one without getting the same partitioned. Hindustan Petroleum Corporation Ltd. purchased land measuring 16 Kanal from Ram Singh, (co-sharer) Defendant vide sale deed dated 10.4.2000 which is prima land being situated along the road side. Along with the plaint, Plaintiff made an application for the grant of temporary injunction.

Vide order dated 28.4.2000, learned Civil Judge (Junior Division). Narnaul declined this application. Not satisfied with the order dated 28.4.2000 of Civil Judge (Junior Division). Narnaul. Bal Kishan-Plaintiff went in appeal which was dismissed by learned District Judge. Narnaul vide order dated 16.9.2000.

Case of the Plaintiff-Bal Kishan is that he and Jagdish Parshad became co-sharers in land measuring 726 Kanal 12 Maria due to decree for specific performance having been passed in their favour by the Court vide order dated 28.7.1999. Their share in the joint land is to the extent of 17 Kanal. Case of Bal Kishan is that he and Jagdish Par-shad have become co-sharer in every inch of the joint land measuring 726 Kanal 12 Maria by virtue of that decree for specific performance. They have become co-sharer in every inch of the land whether superior or inferior. No co-sharer is entitled to appropriate to himself superior portion of the joint land and leave inferior portion of the joint land to other co-sharers. Case of Bal Kishan is that Ram Singh etc. were hobnobbing with Hindustan Petroleum Corporation Ltd. and were out to sell land to Hindustan Petroleum Corporation Ltd. which was abutting the road so as to affect the rights of other co-sharers.

Vide sale deed dated 10.4.2000, Hindustan Petroleum Corporation Ltd. has purchased land bearing Khasra No. 31/4 (4-10), 31/6 (3-4), 31/7 (8-0) and 21/23 (0-6) ad measuring in aggregate 16 Kanal from Ram Singh co-sharer which is equivalent to his 320 share out of total 14532 share. It was submitted by the Learned Counsel for the Petitioner that when Ram Singh was not in possession of these Khasra numbers, he could not put Hindustan Petroleum Corporation Ltd. in possession of these Khasra numbers. Sale deed dated 10.4.2000 would enshrine Hindustan Petroleum Corporation Ltd. to the status of co-sharer only with other co-sharers in land measuring 726 Kanal 12 Maria. On the other hand, it was submitted by the Learned Counsel for Respondent No. 3 that prior to the purchase of this land Hindustan Petroleum Corporation Ltd. through its counsel Shri Prem Nath Gupta. Advocate had inserted publication dated 16th March, 2000 in the "Hindustan Times" and "Punjab Kesri" informing all concerned that all persons having any claim against the said land are free to raise their claims within 10 days from the date of publication. Bal Kishan did not raise any objection pursuant to the publication of the aforesaid public notice dated 16th March. 2000. Hindustan Petroleum Corporation Ltd. took. possession of land measuring 16 Kanal bearing Khasra No. 31/4 (4-10), 31/6 (3-4). 31/7 (8-0) and 21/23 (0-6) in Khewat No. 11. Khatauni No. 11. After the purchase of the said land Hindustan Petroleum Corporation Ltd. obtained ''''No Objection" from District Magistrate. Mohindergarh for the setting up of retail outlet on the said land measuring 2 acres. Thereafter, after completing all formalities and obtaining requisite licence from the office of the Controller of Explosive. Faridabad. Hindustan Petroleum Corporation Ltd. commissioned retain outlet on March 31, 2000. Name of the highway outlet is HP Centre and since March 31, 2000, petroleum products are being sold to consumers and motorists at large at the said retain outlet which is a company owned and company operated project.

Learned Counsel for the Petitioner submitted that it is only a co-sharer in exclusive possession not exceeding his share who can put his vendee in exclusive possession and the other co-sharers not in possession cannot disturb his possession but if a co-sharer not in exclusive possession sells specific portion of the joint land or specific Khasra numbers, the sale shall be viewed as of a share out of the joint land.

A co-sharer can. however, claim injunction against another co-sharer if he is in exclusive possession. Remedy of the other co-sharer not in possession is not ousting him forcibly but his remedy is to go in for partition and to claim mesne profits. It was held by a Full Bench of this Court in Bhartu v. Ram Samp. 1981 PLJ 204 as follows:

(1) A co-owner has 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 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 no 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 the other us. 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-owner, it is not open to anybody to disturb the arrangement without the consent of others except by filing a suit for partition.

A co-sharer in possession can certainly ask for injunction against a co-sharer not in possession restraining the latter from resorting to force and ousting him.

In AIR 1940 473 (Lahore) . it was held by a Division Bench of the Lahore High Court 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 other co-sharer''s right will be sufficiently safeguarded if they are granted a decree by giving them a declaration that the possession of the transferees in the lands in dispute will be that of co-sharers, subject to adjustment at the time of partition.

In Maman Chand Vs. Smt. Kamla, , it was held the "the grant of injunction restraining a co-sharer from raising construction would result in the abuse of the process of the Court". It is quite clear that a co-sharer in exclusive possession not exceeding his own share in the joint holding can effect sale of that portion of the joint holding and put the vendee in possession thereof. The remedy of co-owner not in possession is by way of a suit for partition or the actual possession but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. In Bachan Singh Vs. Swaran Singh, a Division Bench of this Court, on a consideration of the judicial pronouncements on the subject, was of the following opinion that:

(1) 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.

(2) Mere making of construction or improvement of, in the common property, does not amount to ouster.

(3) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.

(4) 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. In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co-owner.

In Bachan Singh Vs. Swaran Singh, the controversy for the consideration of the Division Bench was "whether a co-owner of the property is entitled to seek an injunction against other co-owner who has been in exclusive possession of the entire or part of the property restraining him from making any construction in that> part of the property" and the answer of the Division Bench was that a co-sharer in exclusive possession of a particular piece of land can raise construction.

In this case also when the Hindustan Petroleum Corporation Ltd. was put in possession of the land sold by its vendor, the Hindustan Petroleum Corporation Ltd. can raise construction. Before the Hindustan Petroleum Corporation Ltd. had set up petrol outlet on this land, co-sharers Navrattan Singh. Laxmi Narian, Jai Narain, Smt. Nathi and others furnished declaration -cum-undertaking to the Hindustan Petroleum Corporation Ltd. whereby they declared that co-sharer Ram Singh is in exclusive possession of the Khasra Nos. 31-4 (4-10). 21/6 (3-4). 31/7 (8-0). 21/23 (0-6)) Khata No. 11. Khatauni No. 11 and they have no objection to these Khasra numbers being sold by Ram Singh to Hindustan Petroleum Corporation Ltd. and possession being given of these Khasra numbers to Hindustan Petroleum Corporation Ltd. In this case, there is another difficulty in the way of Bal Kishan claiming injunction. Bal Kishan has not become co-sharer in land measuring 726 kanal 12 Maria from the mere fact that decree for specific performance in their favour. It is an ex parte decree. There is an application tiled for setting aside the ex parte decree. If the ex parte decree is set aside, there will be de novo trial of the suit for specific performance and no wonder the suit for specific performance is dismissed altogether or only a money decree is granted. Bal Kishan and Jagdish Parshad will not acquire the status of co-sharer till sale deed is executed in their favour in pursuance of agreement of sale deed 11.6.1996.

If by virtue of sale executed by Ram Singh in favour of Hindustan Petroleum Corporation Ltd., Hindustan Petroleum Corporation Ltd. has appropriated a more valuable piece of land to itself other co-sharers are not without any remedy. They can ask for partition of the joint land. At partition, the rights and liabilities of the co-sharers inter se shall be adjusted. If at partition, Hindustan Petroleum Corporation Ltd. is allowed to retain possession of this land measuring 16 Kanal. it will be called upon to compensate the other co-sharers in terms of money for retention of more valuable piece of land by it. If at partition, this land measuring 16 Kanal falls to the share of other co-sharer/co-sharers, then also adjustment will take place. Sale by a co-sharer of property which is in his exclusive possession is subject to adjustment of the rights of other co-sharers at partition. Possession of Hindustan Petroleum Corporation Ltd. in land measuring 16 Kanal is only that of a co-sharer of property which is in his exclusive possession is subject to adjustment of the rights of other co-sharers at partition. Possession of Hindustan Petroleum Corporation Ltd. in land measuring 16 Kanal is only that of a co-sharer. In this case, there is no equity in favour of Bal Kishan Petitioner so that injunction could be granted in his favour. Hindustan Petroleum Corporation Ltd. has purchased land measuring 16 Kanal from Ram Singh for a valuable consideration. It has set up petrol outlet. Prior to the purchase of land, the Hindustan Petroleum Corporation Ltd. through its counsel Sh. Prem Nath Gupta, Advocate had given public notice in "Hindus-tan Times" and "Punjab Kesri" that the Hindustan Petroleum Corporation Ltd, is going to purchase land measuring 16 Kanal comprising in Khasra Nos. 31/4 (4-10). 31/6 (3-4), 31/7 (8-0) and 21/23 (0-6) Khewat No. 11 Khasra No. 11 and if any body has any objection, he may do so within 10 days from the date of publication. Bal Kishan did not raise any objection pursuant to the publication of the public notice dated March 16, 2000. So, this revision fails and is dismissed.