Sanjay Gandhi Memorial Co-operative House Building Society Limited v. Virender Kumar & Ors.

Present: Mr. VK Jain, Senior Advocate with Mr. Pritam Saini, Advocate, for the appellant. GURDEV SINGH, J. Defendant No.3/appellant has preferred this second appeal against the judgment and decree dated 27.9.2008 passed by the Additional District Judge, Gurgaon, vide which he dismissed the appeal filed by this defendant against the judgment and decree dated 22.4.2008 passed by the Civil Judge (Jr. Divn.), Gurgaon, vide which he decreed the suit of the plaintiff/respondent No.1-Virender Kumar, for permanent injunction restraining the defendants from selling/alienating the land in dispute bearing khasra No. 3697/3173/1970 to 1973 to the extent of 1 bigha 12 biswas 10 biswansi, out of 3 bigha 3 biswa of total land measuring 3 bigha 5 biswa, situated in the revenue estate of Gurgaon village Tehsil and District Gurgaon, and also for restraining them from selling/alienating the front portion of that land towards the northern side abutting the pucca road more RSA No. 787 of 2009 2 than their share and also for restraining them from changing the nature thereof by raising construction on that site. The case of the plaintiff, as pleaded in the plaint, is that Tej Kaur and Raj Pal agreed to sell their 1/2 share in the suit land in his favour, vide agreement to sell dated 16.12.1982. On their failure to perform their part of the contract, he filed a suit for specific performance bearing No. 740/1983 titled “Virender Kumar versus Smt. Tej Kaur and Raj Pal”, which was decreed on 22.7.1987, by the Civil Judge Ist Class, Gurgaon. Tej Kaur filed an application under Order IX Rule 13 of the CPC for setting aside the ex-parte decree, which was dismissed. She preferred an appeal against that order of dismissal but that appeal was also dismissed by the Additional District Judge, Gurgaon, on 22.10.1998. The execution filed by him is pending before the executing court. The defendants, who are related to Tej Kaur and Raj Pal, are also co-sharers in this land. One pucca road abuts this land on the northern side and in order to encroach upon the front portion towards that road, the defendants started digging foundation with an intention to raise the construction. Therefore, he filed the suit for the above said relief of permanent injunction. The suit was contested only by the present appellant/defendant No.3. In his written statement, he denied the contentions of the plaintiff that Tej Kaur and Raj Pal have 1/2 share in the joint land measuring 3 bigha 5 biswa. He pleaded that the decree for specific performance passed in favour of the plaintiff is illegal and void, as the same was obtained by playing fraud and misrepresentation and misleading the court. That decree does not create any right, title or interest in favour of the plaintiff and is not binding upon him. In fact, Tej Kaur and Raj Pal had only 1/12th share each in this land RSA No. 787 of 2009 3 and objections have already been filed in the execution application, which are still pending. On these pleadings, the following issues were framed:- “1) Whether the plaintiff has got right, title interest as co- sharer in the suit land on the basis of judgment and decree dated 22.7.1987 passed in Civil Suit No. 740/83 titled as Virender Kumar vs. Raj Kaur etc. ? OPP 2) Whether there exists a road towards the northern side of suit land ? If so to what effect ? 3) Whether the defendants have right to raise construction and to sell specific portion towards the road side ? OPP 4) Whether plaintiff has no locus-standi to file the present suit ? OPD 5) Whether suit is not maintainable ? OPD 6) Relief.” To succeed in the suit, the plaintiff examined himself as PW-1. The defendant examined Sita Ram (DW-1) and Pawan Kumar (DW-2). The trial court, after perusing the evidence, so produced on record and hearing counsel for both sides, decided all the issues in favour of the plaintiff and resultantly decreed the suit. The appeal filed defendant No.3 against that judgment and decree was dismissed, as aforesaid. I have heard learned counsel for the appellant/defendant No.3. It has been submitted by learned counsel for defendant No.3 that, as per the findings recorded by the trial court and the first appellate court, defendant No.3 is a co-sharer in the joint land and, as such, he could not have been restrained from raising construction therein or alienating the RSA No. 787 of 2009 4 same to the extent of his share. The substantial question of law arises in the present case is: Whether a co-sharer can be restrained from selling his share in the joint land and from raising construction therein ? It is very much clear from the judgment and decree of the trial court, which was upheld by the first appellate court, that defendant No.3 was only restrained from alienating/transferring the land in excess of his share. There is no dispute about the proposition of law that a co-sharer in exclusive possession of any part of the joint land can raise construction thereon and he cannot be restrained from doing so by any co-sharer, not in possession and the only remedy lies with him is to file a suit for partition. The following principles were laid down by the Division Bench of this Court in Bachan Singh versus Swaran Singh 2000 (2) PLJ 143:- (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 RSA No. 787 of 2009 5 possession can seek an injunction to prevent such act which is detrimental to his interest.” Defendant No.3 was not found to be exclusive possession on any part of the joint land. Learned counsel appearing on his behalf has tried to assert that specific parcels of the joint land were sold to him and possession thereof was also delivered and, as such, it is to be held that he was in exclusive possession of those parcels of the joint land. There might be some recital in the sale deeds to that effect but it was for the defendant No. 3 to prove that his vendor was coming in exclusive possession of that parcel of the land; which is not the case. When defendant No. 3 was not found to be in exclusive possession of any parcels of the land, he could be restrained from raising construction on the joint land. In view of the above discussion, no substantial question of law arises in the present appeal. The same is dismissed accordingly. September 21, 2010 (GURDEV SINGH ) JUDGE