LAL CHAND Vs. JAGDISH CHAND

JUDGEMENT

(1.) The revision is against the order in execution for disobedience of the decree for injunction by one of the decreeholders. The decree had been obtained on a plea that the property belonged to 5 brothers and the defendant/judgment-debtor was attempting to interfere with their possession. The decree for injunction was granted, but the defendant was pleading for a right under 3 agreements of sale purported to have been executed by 3 of the 5 brothers. It appears, all the 3 suits for specific performance had been dismissed and now 2 appeals are pending before this Court where the issue is of the defendant's entitlement to obtain the relief for specific performance in respect of each one of the sharers. The agreement has culminated in a sale on consent with one of the brothers, who has admitted to have surrendered possession of the property even at the time of agreement of sale.

(2.) On an objection taken by the judgment-debtor that the subsequent event of a sale deed and the admission of one of the brothers that he had actually surrendered the property to him, the complaint of disobedience of the order of injunction cannot be sustained, Court overruled the objection and ordered further process in execution.

(3.) The learned counsel for the petitioner reiterates the contention raised before the court below and would point out to the fact that the execution petition does not even reveal the date when the defendant was attempting to disturb the possession. The counsel would also refer to me the decision in Surinder Kumar and another Vesus Ishwar Dayal and another-(1996) 2 Supreme Court Cases 103 where a decree for perpetual injunction restraining the appellants from constructing a window on a 1 feet thick joint wall was sought to be put in execution. In that case, the contention was he had constructed a separate wall by reducing its width and opening a window on his own land for enjoyment of easement of necessity of air. The argument that was accepted by the Court was that there had been an altered construction and, therefore, the decree passed had become unenforceable and inexecutable. I cannot find this as in any way having the least of semblance to the situation as has arisen in this case. A decree for injunction brought at the instance of coowners against the stranger to the family cannot become unenforceable even if the stranger purchaser comes by the benefit of a purchase of a fractional share of anyone of the sharers. Even an admission by one of the brothers that he had sold the property and delivered possession to him cannot make a difference for such an attempt to enter into possession ought to fended off. The remedy of stranger purchaser from a co-sharer ought to be to file a suit for general partition and seek for specific allotment referable to the vendor's share and not carve out to himself the benefit of what his vendor assigned to him. What may be possible amongst the cosharers to decide to do in the manner of enjoyment cannot be assumed by usurpation by a third party stranger. Even the argument that the execution petition does not spell out the date from when the judgment-debtor was making an attempt to interfere cannot assume any significance, for, on the defendants' own showing, he had started laying a claim to a specific item of property as referable to his vendor's share. That contention is good enough to vindicate the decree-holders' plea that their exclusive possession was sought to be disturbed. Further process in execution was justifiably levied and I find no reason to interfere with the same. The order passed already by the court below is confirmed and the revision is dismissed.