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Case Number

C.R No. 727 of 1995.

Advocates

For the Petitioner: Mr. S.C. Kapoor
Sr. Adv. with Mr. Ashish Kapoor & Mr. G.M. Singh
Advocates. For the Respondent: Mr. O.P. Goyal
Sr. Adv. with Mr. K.C. Bhatia
Advocate.

Judges

N.K Kapoor, J.

Acts

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Smart Summary

Judicial Opinion Summary — N.K. Kapoor, J.

Factual and Procedural Background

This revision petition challenges the order of the Additional District Judge dated 14.1.1995 which vacated an interim injunction earlier granted by the trial Court.

The plaintiff filed a suit for a permanent injunction restraining the defendant from raising any construction over the property in dispute and sought an interim injunction to prevent the defendant from changing the nature of the property or raising construction during the pendency of the suit.

The defendant contested the application on the grounds that the applicant (plaintiff) was not the sole owner: the defendant asserted that Prithvi Raj Sethi executed a Will by which the property fell to his sons, each obtaining a one‑third share (Subhash Chander Sethi, Ravinder Nath Sethi and Satish Chander Sethi). The defendant further stated that a portion of the property (shown red on the map) had been under tenancy of M/s. Chuni Lal Shyam Sunder and that the defendant purchased that portion from Subhash Chander Sethi by two sale deeds dated 20.9.1994 and 26.9.1994.

The trial Court, on the parties' averments, concluded that each brother had 1/3 share and held that the sale by Subhash Chander Sethi was a sale of his share; the trial Court restrained the respondent from raising any construction on the suit property without partition by metes and bounds.

On appeal the lower appellate Court found merit in the purchaser/respondent's plea that he had validly purchased the area in his exclusive possession and that he had undertaken that any construction would be at his own risk; accordingly the appellate Court vacated the interim injunction. The present revision petition challenges that appellate order.

Legal Issues Presented

Whether the lower appellate Court was justified in vacating the interim injunction granted by the trial Court in respect of construction over the disputed property.
Whether a co‑sharer (or a transferee from a co‑sharer) who is in exclusive possession of a portion of jointly held property may raise construction or effect improvements on that portion prior to formal partition.
Whether the lower appellate Court had jurisdiction to vary the trial Court's order and whether the appellate interference with the trial Court's exercise of discretion was impermissible in the absence of perversity.

Arguments of the Parties

Petitioner's (Plaintiff's) Arguments

The appellate Court erred in reversing the trial Court's considered order; the appellate interference was illegal and amounted to material irregularity.
Discretion exercised by the trial Court should not have been interfered with by the appellate Court unless that discretion was perverse.
Since there has been no partition of the joint property, a co‑sharer has no right to raise construction on the joint property until partition; co‑sharer rights must be protected and prior authorities support that position.
Exclusive possession by itself does not entitle a co‑sharer to raise construction prior to partition.

Respondent's (Defendant/Appellant in appeal) Arguments

The property had fallen to three brothers; Subhash Chander Sethi was entitled to about 130 sq. yards and he executed two sale deeds (totaling approximately 99 sq. yards) in respect of the portion that was already in the respondent's possession as tenant.
Sale made by a co‑sharer of the portion in his exclusive possession is valid, subject to adjustment at partition; the respondent had given an express undertaking that any construction would be at his risk and he would not claim damages even if the property fell out of his possession at partition.
The suit is only for injunction and the remedy sought against a co‑sharer who is in exclusive possession is misconceived; the appellate Court correctly vacated the interim injunction given the factual matrix and undertaking.
The lower appellate Court properly exercised its discretion after examining the pleadings and the sale deeds; any adjustments, if necessary, can be made at the time of partition.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punjab 528 (DB)	The rights and liabilities of co‑owners; where a co‑owner is in possession of a separate parcel under an arrangement consented to by other co‑owners, that arrangement should not be disturbed except by partition.	The Court relied on this Division Bench authority to support the proposition that a co‑sharer in exclusive possession pursuant to an arrangement can be permitted to continue possession and enjoyment until partition; the judgment was treated as consistent authority that factual arrangements matter.
Bhartu v. Ram Samp, 1981 PLJ 204 (Full Bench)	Recognition of rights of a transferee from a co‑owner, considered in light of Section 44 of the Transfer of Property Act.	The Court cited the Full Bench judgment for the view that a transferee from a co‑owner has rights subject to adjustment at partition; it reinforced that transfer by a co‑owner may be valid as against others subject to partition adjustment.
Om Parkash…Petitioner v. Chhaju Ram…., 1992 PLJ 546 : 1992 (1) RRR 474 (P&H)	Support for the proposition that a co‑sharer has no right to change the nature of the property until partition.	The Court noted this authority among those relied upon by the petitioner but observed that such authorities must be read in light of the facts of each case; the cited decision was weighed with other precedents addressing factual differences.
Jiwan Singh and others v. R. Kant and another, 1985 PLJ 193	Considered whether a co‑sharer in exclusive possession has a right to raise construction; held that raising a construction does not necessarily cause injury as rights of other co‑sharers can be protected by adjustment at partition.	The Court relied on this decision to support the position that a co‑sharer (or transferee) in exclusive possession may make improvements and that other co‑sharers' rights are protected by partition adjustments later.
Sukh Dev v. Parsi and others, AIR 1940 Lahore 473	Authority dealing with co‑owner possession and rights to maintain enjoyment of exclusive parcels.	The Court cited it as supportive authority for the view that a co‑sharer in exclusive possession can maintain and enjoy that portion until partition; used in conjunction with other authorities to show consistency of approach.
Pishora Singh… v. Shrimati Lajo Bai…, 1974 CLJ 626	Authority cited in support of the position that a co‑sharer in exclusive possession has rights to enjoy the property until partition.	The Court treated this as one of several authorities confirming that factual circumstances and exclusive possession inform whether a co‑sharer may enjoy and improve the portion in his possession pending partition.

Court's Reasoning and Analysis

The Court proceeded step‑by‑step, dealing with the factual matrix and the applicable legal principles as follows:

Factual assessment: the Court noted the pleaded history — on the death of Dev Raj Sethi, Prithvi Raj Sethi succeeded and, by Will, the disputed property was said to have fallen to three brothers (Subhash Chander Sethi, Ravinder Nath Sethi and Satish Chander Sethi). The petitioner contested aspects of this, but the court observed that that issue would be examined on evidence.
Sale deeds and possession: the Court observed that the respondent had purchased by two registered sale deeds (dated 20.9.1994 and 26.9.1994) an area that was already in his possession as a tenant. The petitioner had not pleaded that the sale deeds were invalid or that Subhash Chander Sethi lacked the right to dispose of the portion or that the portion sold exceeded his share.
Legal framework among co‑sharers: the Court stated there is no specific statutory law governing relations inter se of co‑sharers in this context, so the matter is regulated by justice, equity and good conscience; injunction questions require case‑by‑case judicial discretion focusing on the balance of convenience.
Precedent analysis: on reviewing authorities cited by both sides, the Court concluded that while authorities consistently uphold that each co‑sharer has a right in each parcel until partition, many judgments also recognise that a co‑sharer in exclusive possession (or a transferee who steps into his shoes) has the right to enjoy and, if necessary, improve that portion until partition — with the protection that adjustments can be made on partition.
Application to present facts: the Court found the present case had peculiar facts — each of the three owners was in possession of separate portions and enjoyed its profits although partition had not been effected. One owner sold the portion in his exclusive possession to the respondent; the respondent had undertaken not to claim damages if the portion later fell out of his possession on partition.
Balance of convenience and damage: the Court noted the petitioner had not shown he was likely to suffer damages if the respondent was permitted to raise construction. Considering the totality of the circumstances, the Court was of the view the petitioner would not be likely to suffer even if the respondent carried out construction on the area in his exclusive possession.
Appellate jurisdiction and trial Court's examination: the Court rejected the petitioner's contention that the appellate Court lacked jurisdiction to vary the trial Court's order. The Court observed the trial Court had not examined the matter in light of the respondent's reply or the case pleaded by the plaintiff; the appellate court had therefore examined the authorship of the Will and prima facie concluded that Subhash Chander Sethi had some interest and had transferred it by sale deeds. The Court held these matters would be examined further on evidence.

Holding and Implications

Holding: The revision petition was dismissed. The appellate Court's order vacating the interim injunction stands.

Implications:

The immediate practical effect is that the respondent is not restrained from raising construction or further construction over the area in his exclusive possession (subject to any rights or adjustments at the time of partition or on final decision after evidence).
The Court emphasised that the question whether the sale deeds or the Will ultimately entitle the respondent to exclusive rights will be addressed when evidence is led; adjustments can be made at partition if necessary.
The judgment does not purport to lay down any new, general principle beyond confirming that co‑sharers' rights are fact‑sensitive: while a co‑sharer ordinarily has rights in every parcel until partition, a co‑sharer (or his transferee) in exclusive possession may be permitted to enjoy and improve that portion with due protection to other co‑sharers by adjustment at partition. The opinion does not indicate it creates a new precedent beyond the application of prior authorities to the facts of this case.

Disposition: Petition dismissed.

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Satish Chander Sethi v. Chunilal Shyam Sunder .

N.K Kapoor, J. — This revision petition is against the order of the Additional District Judge dated 14.1.1995 whereby the interim injunction granted by the trial Court has been vacated.

2. Plaintiff filed a suit for permanent injunction restraining the defendant from raising any construction over the property in dispute and by way of interim injunction prayed that the defendant be restrained from changing the nature of the property or raising any construction during the pendency of the suit.

3. The application was contested by the other party on the ground that applicant is not the owner of the property in dispute. According to the defendant Prithvi Raj Sethi executed a Will and all his sons got separate share in the property in dispute on the basis of Will executed by Prithvi Raj Sethi. According to the defendant, the portion shown red in the map was under the tenancy of M/s. Chuni Lal Shyam Sunder through Shyam Sunder, proprietor, which has now been purchased from one of the owners, namely, Subhash Chander Sethi vide two sale deeds dated 20.9.1994 and 26.9.1994

4. Trial Court on perusal of the averments made by the parties came to the conclusion that plaintiff has 1/3rd share in the property in dispute and similarly his brothers Ravinder Nath Sethi and Satish Chander Sethi too have 1/3rd share each in the property in dispute and so the sale made by Subhash Chander Sethi can be termed as a sale of his share in the joint property. Holding so, the Court restrained the respondent from raising any construction over the suit property without getting it partitioned by metes and bounds.

5. Before the appellate Court, it was argued by the learned counsel for the appellant that he purchased the area which was under his tenancy from Subhash Chander Sethi, one of the co-sharers for a valuable consideration vide two sale deeds dated 20.9.1994 and 26.9.1994 The area sold by Subhash Chander Sethi does not exceed his entitlement. This way, the appellant has become owner in possession on account of these sale deeds. It is precisely for this reason that he has made statement to the effect that any construction/alteration made by him would be at his own risk and he would not claim any damages even if this particular property goes out of his possession at the time of partition. The lower appellate Court found substance in this plea of the appellant and so ordered to vacate the interim injunction granted by the trial Court.

6. It has been argued by the learned counsel for the petitioner that the lower appellate Court has erred in law in reversing the well considered order of the trial Court and this way has acted illegally and committed material irregularity. According to the counsel, discretion exercised by the trial Court cannot be interfered by the appellate Court unless the same is perverse. In the present case, since admittedly there has been no partition of the joint property, the plaintiff is well within his right to get a restraint order preventing the defendant from raising any fresh or further construction upon the joint property. A number of judgments have also been cited in support of the plea that co-sharer has no right to raise any construction in respect of the joint property till the same is partitioned and has fallen to his share exclusively. Merely, for the reason that respondent is in exclusive possession of a portion of the joint property could hardly be construed a factor entitling him to raise construction.

7. Counsel for the respondent on the other hand argued that even as per the case of the petitioner the property in dispute has fallen to the share of three brothers, namely. Subhash Chander Sethi, Ravinder Nath Sethi and Satish Chander Sethi. Total area approximately measures 391 sq. yards. This way, Subhash Chander Sethi, predecessor-in-interest of the present respondent was entitled to approximately 130 sq. yards of land. Examined so, the two sale deeds executed by him in all measure 99 sq. yards and that too in respect of the property which was already in possession of the respondent as tenant and so any sale made by one of the co-sharers is valid subject to any adjustment at the time of partition of the suit property. Since the respondent has already given an undertaking that he would not claim any damages or compensation for raising any further construction upon the exclusive portion which is in this occupation, the lower appellate Court rightly vacated the interim injunction granted by the trial Court which is not only just but appropriate in the circumstances of the case. Otherwise too, the present suit is only for injunction and so the remedy sought against respondent who is also a co-sharer is wholly misconceived. Support was sought from the judgments of this Court which will be briefly noticed in the later part of the judgment.

8. Broad facts which have come on record are that on the death of Dev Raj Sethi, his brother Prithvi Raj Sethi succeeded to his estate and on the basis of Will the property has now fallen to the share of Subhash Chander Sethi, Ravinder Nath Sethi and Satish Chander Sethi. This is being contested by the counsel for the petitioner. But that is the matter which the Court will dilate upon while examining their rights in the light of the Will set up or their right to succeed in terms of Hindu Succession Act. In any case, this precise matter is not in dispute in the present suit. Presently, the sole grievance made by the petitioner is that respondent despite having purchased some area from the joint holding from one of the co-sharers, Subhash Chander Sethi, does not entitle him to raise any construction or further construction upon the property till the same is partitioned. For this, the primary reliance has been placed upon the decision in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punjab 528 (DB), Bhartu v. Ram Samp, 1981 PLJ 204 (FB) and Om Parkash…Petitioner, v. Chhaju Ram…., 1992 PLJ 546 : 1992 (1) RRR 474 (P&H). On the basis of the aforesaid judicial pronouncements, it has been contended by the counsel for the petitioner that a co-sharer has no right to change the nature of the property till the property is partitioned i.e till there is partition between the parties each one of the owner is deemed to be an owner in each and every parcel of the land and if examined so the respondent cannot raise any construction upon the property. Counsel for the respondent, however, argued that there cannot be any bar either in law or in equity restraining a party from raising construction over a portion which is in his exclusive possession. At best such a party can be directed to remove the construction in case ultimately the part in his occupation falls to the share of the other. In the instant case, admittedly, the property in dispute is in occupation of the respondent as tenant-at-will since during the life time of Dev Raj Sethi and has now been purchased by the respondent vide two registered sale deeds. The petitioner has not challenged the sale deeds nor alleged that Subhash Chander Sethi, predecessor-in-interest of the present respondent had no right to dispose of the property or that the property sold by him was in excess of his share. In the absence of such a pleading the necessary inference would be that Subhash Chander Sethi is one of the co-sharers and has a right to dispose of the property to the extent of his share. This way, the respondent is proved to be the owner to the extent of area purchased by him vide sale deeds dated 20.9.1994 and 26.9.1994 There is no statutory law governing the relationship among co-sharers inter se about the common property. Thus, the matter is to be regulated by the rules of justice, equity and good conscience. While considering a question of injunction each case is to be decided upon its peculiar facts. It is always for the Court to exercise a judicial discretion in view of all the facts and circumstances of each particular case and to find out on which side the balance of convenience lies and such like other things. Needless to emphasise when a property is owned by co-sharers, each co-sharer is entitled to make use of the property in a proper manner. Division Bench judgment in Sant Ram Nagina Ram's case (supra) dilated upon the rights and liabilities of the co-owners and held that where a co-owner is in possession of separate parcel under an arrangement consented to by the other co-owners it is not open to anybody to disturb the arrangement without the consent of others except by filing a suit for partition. Even the Full Bench judgment in Bhartu's case (supra) recognise the rights of a transferee from a co-owner in the light of Section 44 of the Transfer of Property Act. In Jiwan Singh and others v. R. Kant and another, 1985 PLJ 193 the Court was considering as to whether a co-sharer in exclusive possession of the site has a right to raise construction upon the land and held that raising of construction upon the disputed land could not be said to cause any injury as rights of other co-sharers stand protected by making suitable adjustment at the time of partition. The Court sought support from the Division Bench judgment in Sukh Dev v. Parsi and others, AIR 1940 Lahore 473 as well as from Pishora Singh… v. Shrimati Lajo Bai…., 1974 CLJ 626. In fact, on perusal of the judgments cited by the learned counsel for the petitioner as well as by the respondent when closely examined it becomes clear that each case has been decided in view of the peculiar facts of that case alone. Thus, whereas the authorities are consistent that each co-sharer has a right in each parcel of land till it is partitioned have all the same held that a co-sharer in exclusive possession has a right to maintain it and enjoy the property till the same is partitioned by metes and bounds.

9. Present case has peculiar facts. Each one of the three owners were in possession of separate portions and had been enjoying its profits though the property has not been partitioned yet. It is precisely for this reason that one of the owners has sold the property in his exclusive possession to the respondent by two sale deeds. Examined thus, any such person who comes in the foot-steps of a co-sharer has a right to enjoy the property which is in his possession till it is partitioned which will also include, to effect all necessary improvements, especially when the other party does not stand to lose in view of the specific undertaking given by the party.

10. The matter can be examined from another angle also. It is not the case of the petitioner that he is likely to suffer any damages in case the respondent is not injuncted from raising the construction. Thus, the totality of the circumstances, I am of the view that petitioner is not likely to suffer even if the respondent is permitted to raise construction or any further construction over the area which is in his exclusive possession.

11. As a last resort the counsel for the petitioner argued that the lower appellate Court had no jurisdiction to vary the order passed by the trial Court. I find this argument too to be devoid of any substance. In fact, the trial Court did not examine the matter in the light of the reply filed by the respondent or even the case pleaded by the plaintiff. Perhaps for this very reason lower appellate Court somewhat dilated upon the Wills set up by the petitioner and thereafter prima facie came to the conclusion that Subhash Chander Sethi had some interest in the suit property and so transferred the same by means of sale deeds. In any case, these are the matters which the Court will examine on the basis of evidence which is yet to be led.

12. Thus, finding no merit in the revision petition, the same is dismissed.

Petition dismissed.

Satish Chander Sethi v. Chunilal Shyam Sunder .

Judicial Opinion Summary — N.K. Kapoor, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's (Plaintiff's) Arguments

Respondent's (Defendant/Appellant in appeal) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Satish Chander Sethi v. Chunilal Shyam Sunder .

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