Judgment:
* % + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
14. h July, 2017. CM(M) 699/2017 SAMEER JAIN ........ Petitioner
Through: Mr. Aditya Aggarwal, Mr. Surendra and Ms. Samia Malik, Advs. Versus SANJAY JAIN & ORS CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW Through: Mr. Vinod Kr. Goel, Adv. for R-4. ........ RESPONDENTS
CM No.24272/2017 (for exemption) 1.
2. Allowed, subject to just exceptions. The CM stands disposed of. CM(M) No.699/2017 3. This petition under Article 227 of the Constitution of India impugns the order dated 24th May, 2017 of the Senior Civil Judge (West), Tis Hazari Courts, Delhi in MCA No.4/17 of dismissal of an appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (CPC) preferred by the petitioner / plaintiff against the order dated 19th January, 2017 (of Civil Judge-06 (West), Tis Hazari Courts, Delhi in CS No.84/2016 (Case No.12776/2016) of dismissal of an application filed by the petitioner / plaintiff under Order XXXIX Rules 1&2 of the CPC.
4. The petitioner / plaintiff claims to be the co-owner along with his step brothers, respondents / defendants no.1&2 of certain immoveable properties. The respondents / defendants no.1&2 dispute that the petitioner / plaintiff is the co-owner; they claim themselves to be the exclusive owners of the property. CM(M) 699/2017 Page 1 of 6 5. The petitioner / plaintiff entered into an Agreement with the respondent no.3 Reliance Infratel Limited permitting respondent no.3 Reliance Infratel Limited to install their cellular phone towers on the said property. The respondents / defendants no.1&2 disconnected the electric supply to the said towers.
6. This led to the filing of the suit from which the present petition arises, wherein the petitioner / plaintiff claimed the relief of direction to the respondents / defendants no.1&2 to restore the electric supply and sought to restrain them from in future disconnecting the electricity or otherwise disturbing the installation of the said towers.
7. The learned Civil Judge before whom the suit was instituted dismissed the application of the petitioner / plaintiff for interim relief to the same effect observing that the petitioner / plaintiff himself had produced before the Court a communication addressed by him to the respondent no.3 Reliance Infratel Limited to the effect that since the respondents / defendants no.1&2 were objecting to the towers and had disconnected the electric supply, the respondent no.3 Reliance Infratel Limited should remove their towers. The learned Civil Judge reasoned that the petitioner / plaintiff having himself called upon the respondent no.3 Reliance Infratel Limited to remove the towers, in fact, no cause of action survived for the reliefs claimed in the suit.
8. The learned Senior Civil Judge in appeal supra has reasoned that though the petitioner / plaintiff had sent the communication aforesaid to the respondent no.3 Reliance Infratel Limited but the said communication had to be seen in the context of all the facts and therefrom it could not be said that the suit had become infructuous. The learned Senior Civil Judge has CM(M) 699/2017 Page 2 of 6 however held that the mere suit for injunction was not maintainable as no finding of title to the property could be returned therein.
9. I have enquired from the counsel for the petitioner / plaintiff the right if any of the petitioner / plaintiff, even if a co-owner, to exclusively deal with the property and /or to appropriate onto himself benefits arising from the property particularly when the respondents / defendants no.1&2 who are according to the petitioner / plaintiff also other co-owners, are objecting to the same.
10. All that the counsel for the petitioner / plaintiff is able to say is that he has ample proof to show that he is a co-owner.
11. However the same does not answer the legal query urged.
12. The petitioner/plaintiff as a co-owner, had/has no right to enter into any agreement with respect to any part of the property/particularly when the respondents/defendants No.1&2, who according to petitioner/plaintiff are other co-owners, are objecting to the same. The remedy of petitioner/plaintiff as a co-owner is only to sue for partition for separation of his share of the property.
13. This Court in Nand Lal Patel Vs. Shiv Saran Lal ILR (1984) 1 Delhi 913 held that a co-owner, merely as a co-owner, is not an agent for the other co-owners and a person who is inducted by one co-sharer upon land belonging to a number of co-sharers, without the consent or authority express or implied of the others, is not a tenant with respect to the entire land and cannot acquire occupancy rights in it. It was further held that no co- owner can chose a specific portion of the common property and transfer it to a third person as if it belonged to him exclusively and if he does so, the other co-owner can object to it and can seek the dispossession of the stranger. CM(M) 699/2017 Page 3 of 6 Again, in Ram Gopal Sawhney Vs. Suraj Balram Sawhney & Sons 23 (1983) DLT92it was held that a co-sharer has no right to put a stranger in exclusive possession of the property and if he does so, the other co-sharer can object to it and can seek dispossession. The same view was followed in Attar Chand Jain Vs. Sudhir Kumar Jain 97 (2002) DLT22and appeal to the Division Bench whereagainst was dismissed vide Surendra Kumar Jain Vs. Attar Chand Jain 112 (2004) DLT914 14. Supreme Court, in T. Lakshmipathi Vs. P. Nithyananda Reddy (2003) 5 SCC150 held that though each co-owner has interest in every inch of the common property, but his interest is qualified and limited by similar interest of the other co-owners; one co-owner cannot take exclusive possession of the property nor commit an act of waste, ouster or illegitimate use, and if he does so he may be restrained by an injunction.
15. Mention may also be made of the dicta of the Division Bench of Punjab & Haryana High Court in Bachan Singh Vs. Swaran Singh AIR2001P&H112 on a consideration of the judicial pronouncements on the subject, holding (i) that 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) that 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 prevent the diminution of the value and utility of the property; (iii) that 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 prevent such act CM(M) 699/2017 Page 4 of 6 which is detrimental to his interest; and, (iv) that 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.
16. In fact, merit is also found in the reasoning given by the learned Senior Civil Judge of, the remedy of injunction, in the light of the dispute by the respondents / defendants no.1&2 of the claim of the petitioner / plaintiff of co-ownership, of the petitioner / plaintiff, being not open to the petitioner/plaintiff. Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (2008) 4 SCC594has held that in a suit for injunction simpliciter no finding of title to immoveable property can be returned. It was held that where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy; where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction; where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. It was further held that a suit for injunction simpliciter is concerned only with possession and the prayer for injunction will be decided with reference to the finding on possession; however in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. It was yet further held that a finding on title cannot be recorded in a suit for injunction, unless there are CM(M) 699/2017 Page 5 of 6 necessary pleadings and appropriate issue regarding title. It was yet yet further held that even where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title.
17. The said dicta was recently followed in T. Ravi Vs. B. Chinna Narasimha MANU/SC/0279/2017.
18. In the present case, the nature of the rights which the petitioner/plaintiff as co-owner claims to have created in favour of respondent/defendant No.3 Reliance Infratel Limited are such, to be entitled to injunction for protecting which the petitioner/plaintiff would be required to establish his title as a co-owner and on the basis of the law hereinabove discussed, it appears that it is not possible for the petitioner/plaintiff to show/establish lawfulness of the said rights.
19. No case for interfering with the order is thus made out. Dismissed. No costs. RAJIV SAHAI ENDLAW, J.
JULY14 2017 ‘pp/bs’.. CM(M) 699/2017 Page 6 of 6