BAKSHISH SINGH AND ANOTHER Vs. DILBAG SINGH

JUDGEMENT

(1.) The revision petition is at the instance of the plaintiffs whose application for injunction has been dismissed by both the Courts below. The first plaintiff and the defendant are brothers. The second plaintiff is son of the first plaintiff. The plaintiffs have sought for relief of injunction against the defendant. The suit is for the relief of injunction restraining the defendants from digging earth beyond 3' and changing the nature of the property without getting the same partitioned by metes and bounds. The contention in defence is that there has already been a partition of his specific share where he has made some trenches. The trial Court and the Appellate Court while dismissing the application for injunction have held that his coowner plaintiff cannot seek for injunction against the defendant from using the property which is most profitable and if the plaintiff is aggrieved the remedy will be for partition. The Court has also observed that the plaintiff has failed to prove irreparable hardship.

(2.) In revision it is contended that defendant's acts of digging trenches amount to changing the character of the property and he should be prevented from doing the same. I have seen through the plaint. The suit has been instituted on 8.6.2012 on an averment that the defendant had in the month of August, 2007 started digging earth and selling the soil to some brick-kiln owner. If the defendant has attempted to dig soil from his land in the year 2007 it cannot be seen as to how the suit came to be filed in the year 2012. At least the plaintiff's case does not spell out imminent threat, on the other hand, it shows acquiescence on his part to the manner of user of property by the defendant. The defendant has contended that he is in exclusive possession of the property and he has sold some soil for brick-kiln the same way is the plaintiff has also sold. The defendant has made reference to the fact that the plaintiff had earlier filed a suit but it was dismissed as withdrawn when the plaintiffs took several opportunities for giving evidence but he did not give any evidence but withdrew the suit. One aspect stems out from the case that plaintiff and defendant are in enjoyment of separate portions of property. The defendant contends that this separate possession was by means of oral partition. Admittedly parties have allowed for separate possession for their own convenience. If the defendant's actions constitute any danger to the property held by the plaintiff for his own convenience then a restraint could be justified as an interim measure in a properly instituted suit for partition. Otherwise an order of injunction against a co-owner in possession will be grossly inequitable.

(3.) Learned counsel refers to me several judgments that hold the view that one co-owner cannot take exclusive possession of the property nor commit an act of waste, ouster or illegitimate use. A Division Bench of this Court in Bachan Singh Vs. Swaran Singh, 2000 3 RCR(Civ) 70 has held that any act of a co-owner that puts a diminution of value to the property can be injuncted by another co-owner. In T. Lakshimpathi Vs. P. Nithyananada Reddy, 2003 5 SCC 150, the Supreme Court was considering the rights of parties under Lease, Rent Control Act. When the tenants had purchased the property from some co-owners and were denying the title of the landlord who had inducted them in possession, a ground of eviction for causing damage to the property was pressed for. We do not have such a situation here. In Bachan Singh's case the injunction was sought by a co-owner who was in possession of the property. User of the other co-owner to exclusion of the first one and causing damage were found to be justifying circumstances for injunction. We again do not have a situation, for, the plaintif himself is in possession of the property and while enjoying the benefit of his share, he is trying to prevent yet another co-owner from enjoying his property. It is another way of dictating by one coowner to another co-owner the manner in which the co-owner shall enjoy without imposing any fetter upon himself. In Arun Kumar Vs. Kulwant Kaur, 2007 3 RCR(Civ) 641 it was stated that action that one co-owner cannot cause diminution of value of the property. The relief of injunction was at the instance of a co-owner out of possession. In New India Construction Co.Ltd. and others Vs. Desh Raj and others, 2007 1 RCR(Civ) 387 the Court held that injunction could be granted if one co-owner ousts possession of another, does an act which is injurious to the common property. In all the above cases, it can be noticed that an act of co-owner that constitutes a diminution of value will be prevented by an order of injunction if the plaintiff as a person who is out of possession and the act of the co-owner in possession amounts to exclusion of right to the detriment of the plaintiff. In our case, I have already observed that the plaintiff is in possession of share equivalent to that of the defendant. The act that is complained of against the defendant is also the act which the plaintiff himself is said to have indulged in, seen through an averment in the written statement. The defendant's act of allowing for earth to be removed for brick-kiln is said to have been persisted from the year 2007. A co-owner who maintains his possession for convenience and has allowed yet another co-owner in possession of another extent, he cannot regulate the manner of user of other portion held by the co-owner by an order of injunction in any way. If the property held by the co-owner is attempted to be wasted and co-owner in possession of some other portion feels that in the matter of final division of property, there is likely to be some imbalance, the appropriate remedy will be to sue for partition and seek for retention of status quo. The efficacious remedy of such person is to sue for partition, if has already not taken place. There is contention already made by the defendant that there had been oral partition and the property held by him exclusively is pursuant to such a partition. Whether it is irrevocable as a completed transaction among parties already or merely a temporary arrangement will require to be considered only in the course of trial. As of now there is no prima facie case of the plaintiffs right to dictate the manner of enjoyment of the property which is admittedly in possession of the defendant. The refusal of injunction by the Courts below was under the circumstances justified and I would find no reason to interfere with the same.