Whether suit for injunction by co-owner for restraining construction is maintainable without claiming partition

*Once in possession, only remedy for the respondent would have been to file a suit for partition other than a simplicitor suit for an injunction*, as has been held in Jai Karan Sharma cas'e (supra) by relying upon the judgment rendered in Bachan Singh v. Swarn Singh, (MANU/PH/0368/2000 : 2000 (3) RCR (Civil) 70 : 2000 (2) PLJ 143 : AIR 2001 P & H 112), *this Court has laid down the following principles as and when a co-owner, can seek an injunction as against another co-owner and it has been laid down as under:-*

"17. On a consideration of the judicial pronouncements on the subject, we are of the opinion that:

(i) A co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of co-owner out of possession.

(ii) *Mere making of construction or improvement of, in the common property does not amount to ouster.*

(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to present the diminution of the value and utility of the property.

(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to present such act which is detrimental to his interest.

*In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co-owner."*

7. *Once the appellant has been put in exclusive possession of a specific portion by virtue of a sale deed executed by one of the co-owners, any suit for injunction would not lie and the remedy would be to file a suit for partition. Sale of land by a co-sharer of a property which is in his. exclusive possession is subject to adjustment at the time of partition. Raising a construction or improvement in the area purchased by him even though it is common property, it would not be detrimental to the interest of the respondent.* 

*IN THE HIGH COURT OF PUNJAB AND HARYANA*

RSA No. 4541 of 2013 (O&M)

Decided On: 01.08.2019

*Major Singh Vs.  Paramjit Singh*

Hon'ble Judges/Coram:

*Jaishree Thakur, J.*

Citation: *AIR 2019 P&H 167*

#injunction

#coowner