JUDGMENT : Dev Darshan Sud, J. The petitioner is aggrieved by the order passed by the learned Civil Judge (Junior Division) Court No. II, Amb, disposing of application(s) under Order 6 Rule 17 of the CPC ('CPC' in short) and 26 Rule 9 of CPC. The petitioner, who was the plaintiff before the learned trial Court, filed an application for amendment of the pleadings therein that defendant Nos. 19, 20 and 21 have started illegal construction on Khasra No. 536 etc. They succeeded in raising two storeys alongwith rooms etc. Petition under Order 39 Rule 2-A of CPC was instituted against the three defendants, which is pending in Court. The application further proceeds that defendant Nos. 31, 32 and 33 have also raised illegal construction while the order of status quo was enforced. The application for amendment could not be filed at an earlier stage since a petition under Article 227 of the Constitution of India being CMPMO No. 194 of 2008 was pending in the High Court and finally disposed of on 15.9.2011 and after the record was received by the learned trial Court the application for amendment was filed. This application was opposed. The learned trial Court while dealing with the aspect of amendment holds that the main dispute between the parties is as to whether the suit land can be partitioned or not. The Court observes that the parties are co-sharers and in this eventuality, mandatory injunction for demolition of super structure cannot be granted to a co-sharer. But in such eventuality, in case substantial injury and damage is proved, the plaintiff can only sue for damages. It would be only after passing of the preliminary decree for partition that the case of the parties can be considered. The learned Court then proceeds that the suit is old and was instituted in the year 1994 and now after a period of 18 years, present application has been initiated. 2. Application under Order 26 Rule 9 of CPC instituted by the plaintiff was taken up and rejected basically on the ground that it is not maintainable as the suit land is still joint. 3. Before adverting to the submissions made by the learned counsel appearing for the parties, the learned Court was well advised to consider the applications separately on their respective merits and not to lump them together. 4. 3. Before adverting to the submissions made by the learned counsel appearing for the parties, the learned Court was well advised to consider the applications separately on their respective merits and not to lump them together. 4. Learned counsel appearing for the petitioner urges that application under Order 26 Rule 9 of CPC was the only remedy left since in the appeal, order passed by the learned Additional District Judge in proceedings under Order 39 Rule 2-A CPC, it was the consistent stand of the defendants that the appellant should have approached the Court below for ascertainment/demarcation of the exact area of the land. Learned counsel submits that the property being joint no party has any right to claim a particular portion of land for exclusive user. In Sant Ram Nagina Ram v. Daya Ram Nagina Ram AIR 1961 Punjab 528 the High Court of Punjab holds: 78. The weight of the authorities and the principles which have been discussed above, give rise to the following propositions- (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. 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. (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. (8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. (9) Where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered." (at p. 539) The Supreme Court in Gajara Vishnu Gosavi Vs. Prakash Nanasahed Kamble and Others, (2009) 10 SCC 654 , holds: 10. In Kartar Singh Vs. Harjinder Singh and others, (1990) 3 SCC 517 , this Court held that where the shares are separable and a party enters into an agreement even for the sale of share belonging to the other co-sharer, a suit for specific performance was maintainable at least for the share of the executor of the agreement, if not for the share of other co-sharers. It was further observed: (SCC p. 521, para 6) 6. As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold the vendee has a right to apply for the partition of the property and get the share demarcated." 11. In a recent judgment in Ramdas Vs. Sitabai and Others, (2009) 7 SCC 444 , to which one of us (Dr.B.S. Chauhan, J.) was a party, placing reliance upon two earlier judgments of this Court in Mamidi Venkata Satyanarayana Manikyala Rao and Another Vs. Mandela Narasimhaswami and Others, AIR 1966 SC 470 , and Sidheshwar Mukherjee Vs. In a recent judgment in Ramdas Vs. Sitabai and Others, (2009) 7 SCC 444 , to which one of us (Dr.B.S. Chauhan, J.) was a party, placing reliance upon two earlier judgments of this Court in Mamidi Venkata Satyanarayana Manikyala Rao and Another Vs. Mandela Narasimhaswami and Others, AIR 1966 SC 470 , and Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, AIR 1953 SC 487 , this Court came to the conclusion that a purchaser of a coparcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. He has a right only to sue for partition of the property and ask for allotment of his share in the suit property. 12. There is another aspect of the matter. An agricultural land belonging to the coparceners/co-sharers may be in their joint possession. The sale of undivided share by one co-sharer may be unlawful/illegal as various statutes put an embargo on fragmentation of holdings below the prescribed extent. 13. Thus, in view of the above, the law emerges to the effect that in a given case an undivided share of a coparcener can be a subject-matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a court in a partition suit, or by settlement among the co-sharers. (at pp.656,657) To similar effect is the decision of the Supreme Court in Jai Singh and Others Vs. Gurmej Singh, (2009) 15 SCC 747 , holding: 8. Learned counsel for the appellants re-iterated the stand taken before the High court and submitted that the ratio of the decision of the Full Bench in Lachhman Singh's case (supra) has full application to the facts of the case. In response, learned counsel for the respondent supported the judgment of the High Court. 9. It is to be noted that the subsequent Full Bench judgment in Bhartu's case the earlier decision in Lachhman Singh's case was distinguished on facts. The principles relating to the inter-se rights and liabilities of co- sharers are as follows: (1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of 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. The principles relating to the inter-se rights and liabilities of co- sharers are as follows: (1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of 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 by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition. 10. It is thus evident that when a co-sharer is in exclusive possession of some portion of the joint holding he is in possession thereof as a co-sharer and is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned. Vendor cannot sell any property with better rights than himself. As a necessary corollary when a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession what he transfers is his right as a co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all co-sharers. (pp.750-751) 5. (pp.750-751) 5. In these circumstances, there is no doubt that no party can claim right of exclusive user in any particular portion of the joint property. On the question of appointment of Local Commissioner, this Court in Bali Ram Vs. Mela Ram and Another, AIR 2003 HP 87 , holding: 13. Rule 9 of Order 26 of the CPC (hereafter referred to as 'the Code'), empowers the Court to issue commission to make local investigation which may be required for the purpose of elucidating any matter in dispute. Though the object of the local investigation is not to collect evidence which can be taken in the Court, but the purpose is to obtain such evidence, which from its peculiar nature, can only be had on the spot with a view to elucidate any point which is left doubtful on the evidence produced before the Court. To issue a commission under rule 9 of Order 26 of the Code, it is not necessary that either or both the parties must apply for issue of commission. The Court can issue local commission suo motu, if, in the facts and circumstances of the case, it is deemed necessary that a local investigation is required and is proper for the purpose of elucidating any matter in dispute. Though exercise of these powers is discretionary with the Court, but in case the local investigation is requisite and proper in the facts and circumstances of the case, it should be exercised so that a final and just decision is rendered in the case." (at p. 89) 6. In these circumstances, this petition is disposed of with these directions: (a) that the subject matter of the suit shall abide by law considered supra and shall not vest any right of equity in any party to claim a vested right on the portion of the land so appropriated for his use unless the law otherwise permits; (b) the learned Court shall also look into the aspect as to whether the appointment of the Local Commissioner is necessary or not in the facts and circumstances of the case. Of course, the Court will always keep in view the prohibition that a local commissioner cannot be appointed as an agency to collect evidence for the parties and in consonance with what this Court directs in Bali Ram's case. Petition stands disposed of. No order as to costs.