SURINDER SINGH Vs. CHARANJIT SINGH AND OTHERS

JUDGEMENT

(1.) The bone of contention in this appeal is an iron gate fixed at point-X at the entrance of the suit property. The suit was brought by the plaintiff for permanent injunction restraining the defendants from interfering in his possession and to restrain defendants from dismantling or removing the Iron gate fixed at the mouth of the passage in dispute. The plaintiff and defendants are co-sharers/owners of the suit property situated at village Panchhat, Tehsil Phagwara, District Kapurthala, Punjab. The property consists of shops in the front and the appurtenent land which lies behind the shops where the three families reside in their respective quarters.

(2.) There are three shops constructed in front of the house of the plaintiff. Each of them owned and possessed by him. He is in settled possession of the three shops in joint ownership. The Iron gate is at the farther end of the three shops from where the defendants commute and are in settled possession of their lots. The access to the parties is from the gate since the shops do not provide exits from their back walls. Even if they did it would not be of much help as it would lead to friction. The plaintiff claim that there was a mutual partition between the co-owners and the portion shown in red colour in the site plan fell to the share of the plaintiff, and the portion shown in blue fell to the share of defendant Charanjit Singh defendant # 1 while the yellow part to Rajinder Singh defendant # 2. The passage shown as ABCD in the site plan was left mutually by the parties for accessing their separate portions. The defendants say that the plaintiff has a right to pass from the gate to access his residence and the passage from the gate is for common use, but he has no exclusive right, title or interest in the gate or in the passage. Plaintiff brought suit alleging threat to his exclusive possession of the gate and the passage to the exclusion of the defendants. The defendants appeared and contested the suit. Issues were framed and parties led their evidence.

(3.) The trial court proceeded on the premise that dispute was amongst co-sharers and no injunction can be granted against another co-sharer since each of them is deemed to be in possession of every inch of the joint land. The plaintiff produced no documentary evidence that he exclusively owns the gate and if plaintiff injuncts defendants right to use the passage via the gate they would be deprived of right of egress and ingress to the respective homesteads would be to their mutual inconvenience. The learned Civil Judge (Junior Division), Phagwara did not agree with case set up by the plaintiff and by the judgment and decree dated September 19, 2007 dismissed the suit after appreciating the oral and documentary evidence adduced by the parties on the file.