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2012 DIGILAW 1633 (PNJ)

Jaswinder Kaur v. Manjit Kaur

2012-11-20

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J. (Oral) - By filing this revision petition under Article 227 of the Constitution of India, plaintiff Jaswinder Kaur has assailed judgment dated 7.12.2011, Annexure P/1 passed by learned Additional District Judge, Chandigarh. Plaintiff-petitioner has filed suit against defendants/respondents. Defendant no. 1 is mother of the plaintiff. Suit property is House No. 1815, Sector 34-D, Chandigarh. Plaintiff admittedly has 25% share in the suit property whereas defendant no. 1 had 75% share therein. Defendant no. 2 claims to have purchased 40% share in the suit property from defendant no. 1. However, plea of the plaintiff is that defendant no. 2 has purchased 40% of 75% share of defendant no. 1 and thus, defendant no. 2 has purchased 30% share in the suit property. It is also the case of the plaintiff that the suit property has not yet been partitioned. Accordingly, the plaintiff has filed suit for partition of the suit property. 2. Plaintiff by moving application for temporary injunction sought to injunct defendant no. 2 from alienating his 30% share in the suit property to anybody during pendency of the suit. 3. Defendant no. 2 contested the suit and the application for temporary injunction and pleaded that he is in exclusive possession of first floor as well as second floor of the suit house and is entitled to alienate his 40% share in the suit property and to deliver possession of the aforesaid portion of the suit house to the alienee. 4. Learned trial court vide order dated 19.4.2011, Annexure P/2 allowed the application of plaintiff for temporary injunction and thereby injuncted defendants no. 1 and 2 from alienating or parting with possession of any specific portion of the suit property in excess of their share. It was also ordered that purchaser of the share of defendants no. 1 and 2 shall not be entitled to come in possession of the property in dispute unless the property is partitioned by metes and bounds. Appeal against order Annexure P/2 preferred by defendant no. 2 has been allowed by learned Additional District Judge vide impugned judgment dated 7.12.2011, Annexure P/1 and thereby order Annexure P/2 of the trial court has been modified and defendant no. 2 has been restrained from alienating more than his share in the house in question and from delivering possession of portion which is not in his exclusive possession. 2 has been allowed by learned Additional District Judge vide impugned judgment dated 7.12.2011, Annexure P/1 and thereby order Annexure P/2 of the trial court has been modified and defendant no. 2 has been restrained from alienating more than his share in the house in question and from delivering possession of portion which is not in his exclusive possession. It has been clarified that defendant no. 2 shall be competent to deliver possession of the portion agreed to be sold by him to the prospective vendee provided defendant no. 2 is in exclusive possession thereof. Feeling aggrieved, the plaintiff has filed the revision petition. 5. I have heard learned counsel for the parties and perused the case file. 6. At the outset, it has to be mentioned that counsel for the parties agreed that plaintiff is in possession of ground floor and annexe of the suit house whereas defendant no. 2 is in exclusive possession of first floor of the suit house. It is also undisputed that there is no construction on the second floor and there is only vacant roof. 7. As regards possession of roof or second floor, defendant no. 2 has specifically asserted that he is in possession thereof. The said assertion has not been specifically controverted by the plaintiff. Even in the revision petition, the plaintiff has taken vague plea in paragraph 11 that since the suit property is not partitioned, defendant no. 2 cannot claim exclusive possession of first floor and roof thereof. However, admittedly defendant no. 2 is in exclusive possession of first floor of the suit house. 8. As regards possession of roof of first floor, prima facie at this stage, it cannot be determined as to which party is in possession thereof. Consequently, it would be appropriate to direct both the parties (including transferee, if any, of respondent no. 2) to maintain status quo regarding possession as well as existing condition of the roof on first floor and neither party shall make any construction thereon. 9. As regards alienation of his share by defendant no. Consequently, it would be appropriate to direct both the parties (including transferee, if any, of respondent no. 2) to maintain status quo regarding possession as well as existing condition of the roof on first floor and neither party shall make any construction thereon. 9. As regards alienation of his share by defendant no. 2 and parting with possession of the portion which is in his exclusive possession, in view of judgment of Full Bench of this Court in the case of Bhartu versus Ram Sarup, 1981 PLJ 204, a co-sharer in exclusive possession of part of the joint property is entitled to deliver possession thereof to his alienee but the alienation, even of the specific portion, would be deemed to be alienation of share of joint property and would be subject to partition of the joint property and would not effect the rights of the other co-sharers. 10. In the aforesaid circumstances, defendant no. 2 cannot be injuncted from alienating his share (whatever he has) in the suit house nor he can be injuncted from delivering possession of portion of the suit house over which he has exclusive possession. However, to safeguard the interest of the plaintiff, it has to be directed that if defendant no. 2 alienates his share in the suit property during pendency of the suit, he shall by specific recital in the deed of alienation itself inform the alienee about the pendency of the instant suit. 11. Counsel for respondent no. 2 vehemently contended that injunction regarding construction cannot be granted as it was not asked for. However, the contention cannot be accepted because the plaintiff has prayed for larger relief of completely injuncting defendant no. 2 from parting with possession of any part of the suit property but only lesser relief in this regard is being granted so that the suit property is preserved during the pendency of the suit. 12. In view of the aforesaid, the instant revision petition is disposed of with permission to defendant no. 2 to alienate his share in the suit house (whatever he has) and also to deliver possession of portion thereof which is in his exclusive possession (whatever he has) during pendency of the suit subject to condition that he shall by specific recital in the deed of alienation itself inform the alienee about the pendency of the instant suit. 2 to alienate his share in the suit house (whatever he has) and also to deliver possession of portion thereof which is in his exclusive possession (whatever he has) during pendency of the suit subject to condition that he shall by specific recital in the deed of alienation itself inform the alienee about the pendency of the instant suit. In addition to it, both the parties including the alienee if any of defendant no. 2 are directed to maintain status quo regarding possession and existing condition of the roof of first floor of the suit house (i.e. on second floor) and neither party shall make any construction thereon during the pendency of the suit. Nothing observed hereinbefore shall be construed as an expression of opinion on merits of the suit. --------------------- Lachman Dass v. Gram Panchayat Village Heran