Chander Bhan v. Rajbir & ORS

Per contra, learned counsel for the plaintiffs submits that, since the land was purchased jointly by Pirthi and Desha, they continued to be co-owners in joint possession of the same as the land still is joint and has not been partitioned.

In order to appreciate the contention raised by counsel for defendant No.1, it will be apt to peruse Section 34 of the 1963 Act, which reads as under :- Section 34. Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not inexistence, and for whom, if in existence, he would be a trustee."

As per the mandate of provision, where the plaintiff is entitled to any relief beyond a mere declaration of title he must claim the same. In the absence of such further claim suit merely for declaration merits dismissal. Applying the parameter to the frame of the present suit, this Court finds that the prayer has been made for grant of decree of declaration along with the permanent injunction. Accordingly, the plea raised by counsel for defendant No.1 cannot be accepted as the present suit is not merely a suit for declaration, but prayer is for consequential relief of permanent injunction as well. From sale deed Ex.P1, it is amply clear that both Pirthi and Desha jointly purchased the land in question. The Courts below rightly held them to be co-owners. In the considered opinion of this Court, the findings recorded by the Lower Appellate Court are in conformity with the settled position of law related to the rights of the co-owners as laid down by Division Bench of

this Court in Sant Ram Nagina Ram vs. Daya Ram Nagina Ram, AIR 1961 Pb. 528 and reiterated by Full Bench in Bhartu vs. Ram Swarup, reported as 1981 PLJ 204', observing as under:- "1) A co-owner has an interest in the whole property and also in every parcel of it.

(2) Possession of the 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 on 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 property 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 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."

In view of the aforesaid ratio of law, the defendants and plaintiffs, being co-sharer, are in possession of the property as agency of each other. Possession of one co-sharer over joint land is deemed to be possession on behalf of the other co-sharer.

In view thereof, this Court finds that the suit cannot be said to be barred by the mandate of Section 34 of the 1963 Act. No other point has been argued.

Finding no merits in the present appeal, the same is ordered to be dismissed.

P