Appeal From Order No.110 of 1993

22nd January, 1997

Petitioner Counsel: Shri. E.P.LOBO
Respondent Counsel: Shri. A.F.DINIZ, Shri. S.S.KANTAK

Cases Cited:
AIR 1951 All. 199 FB [Para 5]
AIR 1958 Punj. 460 [Para 5]
AIR 1962 Orissa 31 [Para 5]
AIR 1976 Cal 277 [Para 5]
AIR 1969 Goa 90 [Para 5]
AIR 1947 Bom. 394 [Para 5]
AIR 1980 Ker. 94 [Para 5]
AIR 1924 Cal. 792 [Para 6]
AIR 1961 Punj. 528 [Para 6]

JUDGMENT

JUDGMENT :- The Appellants (Plaintiffs in the Suit) claim to be co-owners of suit property "Gorbatta" at Ambaji, Margao, along with respondents Nos. 1 to 14 (Defendants Nos. 1 to 14 in the Suit). The case of the Appellants is that the suit property was neither partitioned orally nor by any document nor by any other manner till the date of the filing of the Suit and the same was being enjoyed in common by them. The case of Respondents Nos. 1 to 6 is that the suit property was orally partitioned and 1/3 of the same was separated more than 40 years ago, that is to say, somewhere in the year 1951 and the said portion is being separately and exclusively enjoyed by them for which separate Chalta numbers were also given. The names of the said respondents are stated to be recorded in Survey records of Chalta numbers and compensation for acquisition of land from the said portion was awarded in their favour.

2. According to the Appellants, in the month of March 1990, Respondent No.4 had put stones with the help of Surveyor and upon making enquiries, it was learnt that Respondents Nos. 1 to 6 intended to transfer some of the plots from the said portion to third parties. Accordingly, the Appellants filed a Suit seeking temporary injunction against Respondents Nos. 1 to 6 from selling or alienating the suit property or any part thereof or changing the nature of the land including development or carrying on any construction therein. The Appellants also sought restraint against Respondents Nos. 15 to 22 (Defendants Nos. 15 to 22 in the Suit) who had purchased the plots from Defendants Nos. 1 to 6 seeking to restrain them from making any construction on the said plots purchased by them.

3. The trial Court had initially granted ex parte injunction vide Order dated 5-7-1990, which was vacated by impugned Order dated 30th October, 1993, which is subject-matter of challenge in this Appeal.

4. Learned Advocates for the parties were heard in the matter. Admittedly, there is no written partition deed. The case of the Appellants is that the suit property was never divided, but the case of Defendants Nos. 1 to 6 is that 1/3 of the suit property was separated way back in 1951 and from then onwards it is being enjoyed by them separately. Of course, in order to settle this controversy, evidence will be required and at this stage, we have to proceed on the assumption that the Appellants and Respondents Nos. 1 to 6 are co-owners. Even assuming that under some arrangement, the Respondents Nos. 1 to 6 have been enjoying specific portion of the entire suit property, even then until partition is established, Respondents Nos. 1 to 6 are required to be restrained from selling even the properties stated to be in their exclusive possession since the sale would amount to ouster.

5. The law relating to grant of injunction amongst co-owners is regulated by circumstances of each case, rules of justice, equity and good conscience. The settled law, as can be seen from various authorities of the High Court, is that a co-owner is not entitled to an injunction restraining another co-owner from exercising his right in common property absolutely and simply on the ground of his co-ownership and without reference to the amount of damage to be sustained by one side or the other from granting or withholding of the injunction. While a co-owner is entitled to object another co-owner exclusively appropriating land to himself to the detriment of other co-owners by erecting construction thereon, the question as to what relief should be granted to the plaintiff in the event of invasion of his rights will depend upon facts and circumstances of each case. Suffice to say that these propositions follow from the rulings in Cheddilal v. Chottelal (AIR 1951 All. 199) (F.B.), Puranchand Sant v. Nityanand (AIR 1958 Punj. 460, Lingaraj Misra and Ors. v. Bhubaneshwar Mohapatra and Ors. (AIR 1962 Orissa 31), Sachindra Nath Sarkar and Ors. v. Binapani Basu and ors. (AIR 1976 Cal. 277), Jose Caetano Vaz v. Julia Leocadia Lucretia Fernandes (AIR 1969 Goa 90) and Manilal Ratanchand Shah v. Nanubhai Jesingbhai and others (AIR 1947 Bom. 394). It is also well settled that amongst co-owners injunction is not granted unless there is ouster or other subtantial injury. The Kerala High Court in Gouri and others v. Dr. C.H.Ibrahim and another (AIR 1980 Ker. 94) has laid down that if several owners are in possession of an undivided property, none of them has a right to appropriate to his exclusive use any portion of the property as this will affect a compulsory partition in his own favour according to his own choice.

6. A Division Bench of the Calcutta High Court in Kameswari Sasya v. Sishuram Deka and another (AIR 1924 Cal. 792), which deals with arrangements relating to exclusive possession by a co-owner, has made the following observations :-

" Where joint owners have agreed to a mode of enjoyment, it is not open to one of them to disturb that arrangement without the consent of the others. This is not inconsistent with the fundamental principle that in law each joint owner of an estate is regarded as having joint proprietary right in the whole estate. That, however, is merely right and must not be confounded with the manner of enjoying that right. It operates in strict law to prevent a co-owner from setting up a claim to any parcel as his exclusive property during the continuance of the joint ownership. But where co-owners by arrangement either tacit or express, take up exclusive possession and enjoyment of different parcels of the joint property without such definition or severance of interest as would amount to partition, the Court need not interfere with the arrangement at the instance of one co-owner during the tenure in common and will do so only on partition so far as may be necessary to make an equitable division of the property."

The normal rule is that a co-owner in possession of joint property has no right to change the user of that property without the consent of other co-owners. A Division Bench of Punjab High Court in Sant Ram Nagina Ram v. Daya Ram Nagina Ram and others (AIR 1961 Punjab 528) has enumerated principles governing co-owners after examining law laid down by various High Courts and one of the principle which is attracted to the facts and circumstances of this case is as under :

" Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition."

Thus, when by arrangement or otherwise, a co-owner is in exclusive possession of any part of the joint property, which does not amount to ouster, it would be necessary that during the pendency of partition proceedings the exclusive possession of such joint co-owner should be protected as far as possible. To what extent such protection would go, would naturally depend upon the facts and circumstances of each case and it may be rather hazardous to lay down any general principles as such. When a co-owner is in exclusive possession of joint property or part of joint property, his exclusive possession would have to be certainly guarded, subject, of course, to restrictions that the co-owner does not alienate the same or carry out any improvements of permanent nature and does not change the nature of the property so as to put the other party at disadvantage at the time of partition. In view of the position of law referred to above, it is considered necessary that defendants Nos. 1 to 6 should be restrained from further disposing of any plot from the part of the property which is alleged by them to be in their possession till the final disposal of the suit.

7. Insofar as Respondents Nos. 15 to 22 are concerned, the trial Court in para 21 of the impugned judgment while dealing with the balance of convenience, has stated that Respondents Nos. 15 to 22 have already started construction. Learned Advocate Shri Lobo submits before me that no construction has been made by Respondents Nos. 15 to 22 even till today, but he has not been able to substantiate his contention. The said Respondents had purchased the plots vide separate Sale Deeds dated 6-11-1989, 24-11-1989, 4-12-1989, 14-3-1990, 28-5-1990 and 3-5-1990. The result of restraint which is sought by the Appellants against Respondents Nos. 15 to 22 would be that they will not be able to make any construction in the said plots till the disposal of the suit which may take years for final disposal. I had asked learned Advocate Shri Lobo whether the Appellants are willing to furnish Bank guarantee for the escalation of the construction costs from the year 1990 till the disposal of this suit, since grant of injunction in favour of the Appellants would naturally affect the Respondents Nos. 15 to 22 and, in the meantime, there will be tremendous escalation of cost of construction. Learned Advocate Shri Lobo stated before me that the Appellants are not ready to furnish such Bank guarantee or security. In these circumstances, I do not consider that this is a fit case where restraint sought by the Appellants against Respondents Nos. 15 to 22 can be granted. Of course, it goes without saying that any construction which is made by the Respondents Nos. 15 to 22 during the pendency of the Suit would naturally be subject to final decision of the Suit and if, ultimately, the Appellants succeed and in the meantime construction is made by Respondents Nos. 15 to 22, they shall not be entitled to reimbursement of any expenditure incurred by them on such construction. However if Appellants fail and Respondents 15 to 22 had not carried out any construction due to the suit, they may persue remedy, if any, available to them.

8. For the aforesaid reasons, Appeal is partly allowed and the Respondents Nos. 1 to 6 are hereby restrained from further selling any plot from the suit property till the final disposal of the Suit.

Appeal partly allowed