Case: RSA-5381/2019
Case Title: Tarsem Singh (deceased) through his LR versus Major Singh (deceased) through his LRs & Others
In the present case (Section 34 r/w Section 38, Specific Relief Act, 1936), it was averred that the brothers of the plaintiff-appellant are residing in England and the plaintiff-appellant was cultivating their share in the suit land. It was further the case that the plaintiff-appellant and his brothers were in exclusive possession of the suit land for the last more than 30 years as co-sharers but the suit land along with other land was joint of the owners as recorded in the jamabandi. The plaintiff alleged that he, along with his brothers were in exclusive possession as co-sharers of the suit land and the defendants threatened him to interfere in his lawful, peaceful and exclusive possession of the said land, illegally and forcibly, to which they had no right except in due course of law till the partition of the suit land and as such the plaintiff-appellant was entitled to the injunction as prayed for.
The defendants averred that the plaintiff-appellant, his brothers, the defendant/respondents and their brothers along with other co-sharers were co-owners of the suit land. It was further averred that the defendants had constructed a house in one of the parts of the land with passage to their house through the said land and were enjoying the same without any sort of obstruction for last more than 20 years as a matter of right and by way of easement of necessity as there was no other passage to their residential houses.
The Hon’ble High Court further observed that both the Trial Court and the lower Appellate Court concurrently found that the suit land is joint. Once the suit land is not partitioned and the parties to the suit are co-sharers and co-owners, each and every co-sharer is in possession of every inch of land.
The court noted that a joint owner cannot prevent by injunction the usage of a portion of the joint property by another co-owner unless this amounts to wastage or destruction or injury to the other co-owners. Every co-owner has a right to use the joint property in a husband-like manner not inconsistent with similar rights of other co-owners. The plaintiff-appellant failed to establish that he was in exclusive possession of the suit land.
Accordingly, the appeal of the plaintiff was dismissed by the Hon’ble High Court.
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