A co-sharer is deemed to be owner and in possession of each part of the joint holding even when he is not in possession of any specific part

PUNJAB AND HARYANA HIGH COURT

Before :- N.K. Kapoor, J.
Civil Regular Second Appeal No. 1929 of 1979. D/d. 6.5.1997.

Lillu and (deceased) represented by his LRs - Appellant
Versus
Ram Kishan - Respondents

For the Appellant :- Mr. S.K. Pipat, Sr. Advocate with Mr. Sanjiv Pandit, Advocate.
For the Respondents :- Mr. Rajesh Chaudhary,

Punjab and Haryana High Court, Chandigarh

JUDGMENT

N.K. Kapoor, J. - This is plaintiff's regular second appeal against the judgment and decree of the Additional District Judge whereby the Court having come to the conclusion that plaintiff too has right/interest in the suit property merely decreed the claim of the plaintiff to get the land partitioned and to recover the share which earlier belonged to Ram Kishan his predecessor in-interest.
2. Briefly put, plaintiff filed a suit for possession in respect of land measuring 10 marlas as per details given in para No. 1 of the plaint on the ground that he purchased the suit land from Ram Kishan-defendant vide registered sale deed dated 22.2.1974. According to the plaintiff, defendant had promised him to give possession of the suit property at the site after the registration of the sale deed but he had been postponing the same for one of the other reasons and ultimately it came to his notice that defendants 2 and 3 have illegally encroached upon the same with the consent and connivance of defendant No. 1 hence, prayed for possession of the suit property.
3. Defendants 2 and 3 contested the suit. They filed written statement inter alia alleging that neither the plaintiff nor defendant No. 1 was the owner or in possession of the suit land. According to the answering defendants, plaintiff or his predecessor-in-interest was never in possession of the suit property, rather the same has remained in their possession for almost 14 years and this possession is adverse to the owner. Plea of estoppel by conduct, laches and acquiesences was raised.
4. A number of issues were framed by the trial Court but primarily the contest revolved around the status of the plaintiff and also as to whether defendants 2 and 3 have become owner of the suit land by adverse possession.
5. Trial Court on appraisal of the evidence adduced by the parties decided these two material issues in favour of defendants i.e. holding that Ram Kishan was not the owner of the suit land and hence the plaintiff had no right in the suit property and that defendants' adverse possession has ripened into ownership.
6. Feeling aggrieved against the judgment and decree of the trial Court the plaintiff preferred an appeal. The lower appellate Court on reconsidering the matter in the light of documentary evidence on record came to the conclusion that suit land was owned by Ram Kishan, Molu and Jaili. The Court, accordingly, held that neither Ram Kishan nor Molu is exclusive owner of property in dispute.
7. Similarly, while examining the finding of the Court below regarding claim of the defendants to the effect that they have become owners by adverse possession, the Court held that mere long possession cannot be construed as ouster of a joint owner. This finding of the trial Court too was reversed. However, the Court came to the conclusion that the suit property is in exclusive possession of defendants 2 and 3. The Court while maintaining the decree, dismissed the suit permitting the plaintiff to sue for partition and seek recovery of share belonging to Ram Kishan. Appeal was, thus, partly accepted.
8. At the motion hearing it was argued by the learned counsel for the appellant that since plaintiff-appellant was joint owner with the respondent, the Court ought to have passed a decree for joint possession. Notice of motion was issued by the Court and after hearing the parties the appeal was admitted.
9. Learned counsel for the appellant argued that lower appellate Court having come to the conclusion that property in dispute is jointly owned by the contesting defendants and predecessor-in-interest of the plaintiff - the appellant a decree for joint possession ought to have been passed by the lower appellate Court. A co-sharer is deemed to be owner and in possession of each part of the joint hold in even when he is not in possession of any specific part. No doubt when the other co-sharers are in exclusive possession of some portion of the joint holding his possession too is deemed to be possession on behalf of all the co-sharers. Rights inter se, of course, are to be determined at the time of actual partitioning of the joint holding. So, the decree of the Court below deserves to be modified.
10. Counsel for the respondents on the other hand argued that it is proved on record that the defendants have raised construction upon the property some 14/17/18 years before the filing of the suit. The defendants have remained in exclusive possession of the property to the exclusion of the plaintiff and his predecessor-in-interest. Such being the factual position, the same amounts to ouster and so the claim set up by the plaintiff is wholly mis-conceived. Trial Court on appraising the evidence adduced by the parties rightly came to the conclusion that the suit being devoid of merit deserves to be dismissed. No doubt the appellate Court has chosen to reverse the finding regarding the ownership of the property, all the same, decree by the lower appellate Court does not need any modification.
11. Having heard the learned counsel for the parties and after perusing the judgments of the Courts below, I am of the view that the decree of the lower appellate Court deserves to be modified. Lower appellate Court has come to the conclusion that Ram Kishan, Molu and Jaili are owners of khasra No. 318. Lower appellate Court further held that neither Ram Kishan nor Mollu is in exclusive possession of the property in dispute. Concededly, Ram Kishan sold his share of the property to the plaintiff vide sale deed dated 22.2.1974. Similarly, defendants 2 and 3 have come in the foot steps of Molu. Thus, there is no manner of doubt that property is jointly owned by the parties.
12. Inter se rights and liabilities of the co-sharers were settled by a Division Bench of this Court in very detailed judgment in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punjab 528, and the following propositions, inter-alia, were settled :-
    (1) A co-owner has an interest in the whole property and also in every parcel of it.
    (2) Possession of joint property by one co-owner, is in the eye of law, possession of all even if all but one are actually out of possession.
    (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
    (4) The above, rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession of behalf of all, on the ground of ouster, the possession of a co- owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other.
    (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
    (6) Every co-owner has a right to use the joint properly in a husband like manner not inconsistent with similar rights of other co-owners.
    (7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition."
This judgment was subsequently cited with approval in a Full Bench judgment titled Bhartu v. Ram Sarup, 1981 P.L.J. 204.

13. On the basis of the aforesaid propositions one can say that a co-sharer in possession exclusively of some portion of the joint holding, he is in possession thereof as a co-sharer and is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned. Such being the position, the plaintiff indeed was entitled to joint possession of the property and so the decree of the lower appellate Court deserves to be modified to this extent. However, it is made clear that as defendants 2 and 3 have been found to be in possession of the property, plaintiff can lay claim for partition and seek possession of such share which belongs to him and till such time, of course, has no right to interfere with the possession of the defendants. Accordingly, I accept the appeal modify the judgment and decree of the Court below declaring that plaintiff is entitled to joint possession of the property and to claim partition and thereafter recover possession of the share which may fall to him but till such time cannot interfere with the possession of the defendants over the suit property.
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