Joginder Singh v.

Dalip Singh, (P&H) : Law Finder Doc Id # 1021812

PUNJAB AND HARYANA HIGH COURT

Before:- Mr. Amit Rawal, J.

C.R. No. 918 of 2018 (O&M). D/d. 12.02.2018.

Joginder Singh and others - Petitioners

Versus

Dalip Singh and others - Respondents

For the Petitioners:- Mr. Vikram Anand, Advocate.

Civil Procedure Code, 1908, Order 39, Rules 1 and 2 - Ad-interim injunction - Joint ownership - Held, it is
settled law that co-sharer cannot seek injunction against another co-sharer but if one is in exclusive
possession then he can seek injunction under Order 39, Rules 1 and 2 - Order upheld - Revision disposed
off.

[Paras 4 and 5]

Cases Referred :

Bachan Singh v. Swaran Singh, 2000 (3) RCR Civil 70 (2001).

Bhartu v. Ram Sarup, 1981 PLJ 204.

JUDGMENT

Mr. Amit Rawal J. (Oral) - The petitioner-defendants are in revision petition against the impugned order
dated 23.10.2017 (Annexure P-8) rendered by the Lower Appellate Court, vide which the application
filed under Order 39 Rules 1 and 2 of Code of Civil Procedure (in short 'CPC'), has been allowed while
setting aside the order dated 18.02.2017 (Annexure P-6).

2. Mr. Vikram Anand, learned counsel for the petitioner-defendants submitted that revenue record
revealed the status of petitioner-defendants and respondent-plaintiffs is of co-owners. The Lower
Appellate Court abdicated in reversing the well reasoned finding without noticing the fact that
respondent-plaintiffs had not been able to comply with essential ingredients of Order 39 Rules 1 and 2
CPC, i.e., balance of convenience, irreparable loss. As per the settled law, no injunction can be granted
against the co-owners and the remedy is only to seek partition, thus, there is illegality and perversity in
the order under challenge.

3. I have heard the learned counsel for the petitioner-defendants and appraised the paper book.

4. Conceded position on record is that khasra girdawari for the year 2011 to 2015 and fard jamabandi
for the year 2011-12, showed that plaintiffs had been in exclusive possession of the land in dispute,
though in the column of ownership, name of the petitioner-defendants has been recorded. Thus, in my
view, the Lower Appellate Court being the last Court of facts and law has examined the evidence
brought on record by bringing the case within the parameters of Order 39 Rules 1 and 2 CPC by holding
that revenue record under Section 44 of the Punjab Land Revenue Act, 1887 carried a presumption of
truth unless rebutted. In my view, the petitioner-defendants would have a right to rebut the same but
prima facie the respondent-plaintiffs had been found in exclusive possession, therefore, suit for
injunction, much less, injunction qua co-owners is permissible.

5. It is settled law that a co-sharer cannot seek injunction against another co-sharer but if in exclusive
possession then "yes". The aforementioned view of mine is supported by the Full Bench judgment
rendered by this Court in Bhartu v. Ram Sarup 1981 PLJ 204 and reiterated by the Hon'ble Division
Bench of this Court in Bachan Singh v. Swaran Singh 2000 (3) RCR Civil 70, 2001. In my view, the
respondent/plaintiffs have been able to prove the ingredients of Order 39 Rules 1 and 2 of the CPC
which is the foundation for granting ad interim injunction.

6. With the aforementioned observations, while upholding the order under challenge, revision petition
stands disposed of.