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2008 DIGILAW 468 (JK)

Mohd. Akram Siah v. State

2008-12-02

MOHAMMAD YAQOOB MIR

body2008
1. Impugned are the orders dated 14.5.2008 and 7.6.2008, passed by the court of 1st Additional District Judge Srinagar vide order dated 14.5.2008. Status quo has been ordered to be maintained on spot till further orders. The order has been kept subject to variation, modification and cancellation, provided fresh facts are brought before court for consideration. Vide order dated 7.6.2008, application moved in terms of Order 39 Rule 4 CPC for vacation of the order of Status quo has been rejected. 2. Parties are the two real brothers, who admitted have jointly purchased 5 kanals of land (under Survey No. 3847/1064, one kanal 10 marlas, Survey No. 3847/1064,7 marlas, Survey No. 1062, 2 kanals 13 marlas and Survey No. 1063, 10 marlas). The said land stands mutated in the name of the parties. 3. Appellant (defendant) has started the construction of his residential house on a portion of the land, which reached to the slab level, respondent aggrieved of the raising construction has filed suit for partition, permanent mandatory injunction contending therein, that the land is just in between the parties, until partition, appellant/defendant could not raise any construction, as the appellant cannot occupy particular portion to the disadvantage of respondent/plaintiff. Learned trial court acted on the concern co-ownership and the joint rights of the co-owners, concluded that the respondent (plaintiff) satisfies the cardinal principles, construction shall be irreversible, allowing the construction shall cause irreparable loss, therefore ordered for maintaining the position i.e. Status quo. 4. After a gap of 12 days of the passing of the order appellant (defendant) filed application in terms of Order 39 Rule 4 CPC, contending therein that as per report of the Commissioner he has not occupied any portion of the land of the respondent. Furthermore raising of the construction shall not be in any way to the disadvantage of the respondents. Learned trial court not satisfied with the submission has concluded that no new facts have been brought on record. Order 39 Rule 4 CPC does not empower the court to re-open the matter, when both the parties have been heard while passing the order of Status quo. To alter the order of Status quo shall amount to review of the order, therefore application being misconceived is dismissed. 5. Thoughtfully considered the submissions as advanced and also perused the record meticulously. To alter the order of Status quo shall amount to review of the order, therefore application being misconceived is dismissed. 5. Thoughtfully considered the submissions as advanced and also perused the record meticulously. It is the settled proposition of law that when the property is joint the co-sharers have right on each and every parcel of the joint property and one party cannot occupy at his sweet will a particular portion. The partition is the mode which provides for proper allocation of the shares in the joint property. In my opinion where a co-owner occupies a particular portion and utilizes by doing so, if no disadvantage, loss or de-valuation of the joint property occurers then balance tilts, equitable relief has an object of protecting the parties from any undue loss. In the instant case the stand of the appellant throughout has been that there has been private partition in between the parties. It is on then he has started construction, which has reached to the slab level. The late action of the respondent by instituting the suit has an object of subjecting the appellant to inconvenience and irreparable loss. 6. The important question which has been lost sign of by the learned trial court while passing the orders impugned is that the map of the suit land available on the file as annexed with the plaint indicates the location of the construction. The position of the land, accessibility of the land, simply to say the co-owners cannot raise (sic) until partition is not enough, unless occupying a particular portion or by raising construction on particular portion value of the property is not diminished or that the other party is not subjected to in-convenience irreparable loss, are factors to be taken not of. The construction of the residential house cannot be forestalled in perpetuity, unless raising of construction has an adverse impact on the value of the land or on the rights of the other party. 7. The admitted position is that the appellant is the owner of 2 kanals and 10 marlas. If he exceeds 2 kanals and 10 marlas he can be stopped, when he has raised construction within his own limits, whether he could be stopped from raising construction has not been looked into. 8. 7. The admitted position is that the appellant is the owner of 2 kanals and 10 marlas. If he exceeds 2 kanals and 10 marlas he can be stopped, when he has raised construction within his own limits, whether he could be stopped from raising construction has not been looked into. 8. The contention as has been raised by the appellant i.e. to furnish undertaking to demolish the construction, if the plaintiff succeeds in his suit, could protect the interests of otherside. It is true that raising of construction then its demolition on the basis undertaking creates hardship for enforcement but same shall not stand, where the chance of such situation prima facie does not seem to arise, undertaking in the given circumstances prima facie would suffice to safeguard the interests of otherside. 9. For the reasons stated above, both the orders under challenge are set-aside. Learned trial court keeping in view the observation made hereinabove shall afresh decide the application for injunction. Appeal according succeeds. Learned counsel for the parties shall ensure presence of the parties before the trial court on 17.12.2008. Copy of the order alongwith the record be send back forthwith.