SANJEET AND OTHERS Vs. JAGWANTI AND OTHERS

JUDGEMENT

(1.) The petitioner is aggrieved that the relief of injunction sought against the purchaser from the co-owner in the suit itself could not have been allowed in the manner that has been done without impleading the alienating co-owner. The contention is that if the co-owner was in possession of the property as a purchaser, he is entitled to get into his shoes and enjoy the same rights as all the co-owners have. I hold that if the property is in undivided status and between the co-owners they have an arrangement to be in possession of various portions that arrangement can continue only so long as the same co-owners exist and if it is transferred, the transferee cannot enjoy the same right unless the non-alienating co-owner consents for the same. If he had an objection to the purchaser to enter upon the property, the remedy of the purchaser would only be to file the suit for partition and secure the property which was in enjoyment for an equitable allotment to the alienating co-owner and get possession of the same. A stranger purchaser cannot force himself for joint possession against the non-alienating co-owner without his concurrence.

(2.) Even the argument made that the alienating co-owner is not made a party is not tenable, for, if the non-alienating co-owner wants to protect his possession against the stranger, it is not necessary that the co-owner is also made a party. If the purchaser wants to canvass for any right in the presence of the co-owner, he may be at liberty to do so by moving the application for impleadment and will have no bearing to the frame of the suit.

(3.) Learned counsel refers to me judgment of this Court in Surjit Singh v. Mohinder Singh and another, 2008 1 RCR(Civ) 396 that vendor selling his share of land in joint khewat without getting the land partitioned is not illegal. A co-sharer in joint land has a right to sell his share without getting the land partitioned, he can deliver possession of the portion of the joint land to his vendee if he is in exclusive possession of the same. I am not saying that sale by the co-owner is illegal or void. I am only saying that if the alienating co-owner in exclusive possession of the property sells it to the stranger and a non-alienating co-owner has an objection for the purchaser to enter upon the property, he is entitled to bring an action for injunction. The judgment in Surjit Singh's case did not address the issue of the entitlement of the non-alienating co-owner to maintain action for injunction.