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2013 DIGILAW 496 (JK)

Din Dayal Kapoor v. Kusum Kapoor

2013-08-30

JANAK RAJ KOTWAL

body2013
1. This is a Civil Miscellaneous Appeal. 1(a) Heard. I have perused the record. 2. Question for consideration raised is whether appellant nos. 3 & 4, who in their capacity as co-owners are in exclusive and undisputed possession of a residential annexe, which is part of the joint property of the parties, can be allowed to raise construction of first floor on the said annexe without partition of the joint property by metes and bounds. The ancillary question is whether a, co-owner of unpartitioned joint property can claim injunction against another co-owner restraining him from raising construction on a portion of the joint property of which he has been in exclusive possession. 3. Background facts, which are required to be narrated, briefly, are these: 3.1. Undisputedly the suit property comprising of a kothi built on two plots, nos. 21-A & 21-B, situate at Gandhi Nagar, Jammu was purchased, in different shares by the parties (or their predecessors-in-interest) from its owner Sh. Ram Nath Kapoor by virtue of different sale deeds. Half of the property was purchased in the name of appellant no.2, who is wife of appellant no.1 and l/4th each in the name of appellant no.3 and the respondent. Shares covered under the different sale deed, however, were not specified or delineated so after its purchase, entire property indisputably assumed character of joint property of the parties though in different shares as per the sale deeds (supra). 3.2 Respondent (plaintiff) has filed a suit against appellants (defendants) in the Court of learned Additional District Judge, Jammu for partition of the suit property by meets and bounds and for separate possession. She has contended that her husband had shifted to the suit property first of all and started living in first floor of the kothi. He converted the garage into annexe by constructing four rooms, bath rooms and kitchen to be used as guest house. He also converted tank, small room and toilets existing at south-eastern corner of the land into a hall measuring 30.3 feet x 17 feet about which appellant nos. 1 & 3 raised dispute and matter is subjudice in this Court. He also made some additions and alterations in the main kothi. It is further contended by her that after some time appellants also shifted to the suit property. Appellant nos. 1 & 2 started living in first floor of the kothi and appellant nos. 1 & 3 raised dispute and matter is subjudice in this Court. He also made some additions and alterations in the main kothi. It is further contended by her that after some time appellants also shifted to the suit property. Appellant nos. 1 & 2 started living in first floor of the kothi and appellant nos. 3 & 4 were accommodated in the above said annexe. 3.3 Respondent has alleged that appellants have started threatening to raise construction on the vacant area around the kothi without partition of the property by meets and bounds and are threatening to occupy most valuable open land which is used as common lawns, pathways and driveway by the respondent to the main kothi in which she is residing in the ground floor. 3.4 Respondent also filed an application under Order 39 Rules 1 & 2 CPC seeking temporary injunction restraining the appellants from raising any construction on the kothi and the open lawns. 3.5 Appellants (defendants) in their written statement have contended that Late Sh. Devki Nandan Kapoor (father of appellant nos. 3 & 4) with the consent of his brothers during his life time had identified the portions of the suit property to be occupied by the parties as per their title deeds. Late Sh. Jai Manmohan Kapoor (husband of respondent) accepted the ground floor of the Kothi as well as land on the southern side where the big hall has been constructed by him. Sh. Devki Nandan Kapoor remained satisfied with the annexe and the vacant land at its front including the pathway, driveway and the porch. Appellant nos. 1 & 2 accepted the first floor of the kothi and the remaining vacant land and the parties are now in possession of their respective portions. 3.6 As regards the new construction, appellants' stand before the trial Court is that appellants (defendant nos. 3 & 4) being short of accommodation wanted to raise construction on the first floor as well as on the vacant land in front of the annexe and have got building plan approved from the Municipal Corporation. The respondent had been supervising the construction started by appellant nos. 3 & 4 and had been issuing directions in this regard. 4. To restate in brief, the jointness of the entire Suit property is not a disputed fact whereas the identification of the respective shares of the share-holders by late Sh. The respondent had been supervising the construction started by appellant nos. 3 & 4 and had been issuing directions in this regard. 4. To restate in brief, the jointness of the entire Suit property is not a disputed fact whereas the identification of the respective shares of the share-holders by late Sh. Devki Nandan Kapoor, as contended by the appellants, is not admitted. Besides, it is not disputed that the share-holders are in possession of different portions of the suit property. It is admitted fact that appellant nos. 3 & 4 are in acknowledged exclusive possession of the annexe ever since they have shifted to the suit property inasmuch as it the respondent's contention that her husband had put them in possession of the said annexe. It is admitted by the appellants that appellant nos. 3 & 4 intend and have started raising construction of first floor on the annexe and some vacant land in its front. 5. In the matter of temporary injunction, learned trial Court, firstly, dismissed the application vide order dated 10.04.2012. That order, however, came to be challenged in CIMA No. 146/2012 before this Court and this Court vide order dated 09.05.2012 allowed the appeal and set aside the order observing that the learned trial Court had failed to consider the issue as to whether therein respondents (defendants) could be restrained from raising construction on the joint property. The observation of this Court reads as under: "The injunction application was filed with the prayer that respondents be restrained from raising construction on the joint property. Learned trial Judge has not considered this aspect of the matter. Learned trial Judge was under legal duty to consider the issue raised in the suit and in the written statement and had to return a, prima facie, finding as to whether, in the facts and circumstances, of the case respondents may or may not be restrained from raising the construction on the suit land. In a case of like nature the application seeking to place restrain on the other side to raise construction is competent and maintainable, but the learned trial Court has to decide the same on the settled principles of law for grant or otherwise of the injunction. In a case of like nature the application seeking to place restrain on the other side to raise construction is competent and maintainable, but the learned trial Court has to decide the same on the settled principles of law for grant or otherwise of the injunction. Since the learned Judge has not adverted its attention to this aspect of the matter and on presumptuous conclusion has dismissed the application, when as a matter of fact the case was not set up by the appellant that respondents be restrained from enjoying the joint property." Emphasis supplier 6. Learned trial Court vide order dated 16.07.2012 allowed the application for temporary injunction and restrained the appellants (defendants) from making any construction over the Suit property without the consent of the respondent (plaintiff). Learned trial Court took the view that "right to enjoy the joint property connotes the corporeal use of joint property by joint owners and obviously does not include making of improvements in joint property by joint owners in guise of raising construction in the joint holding." Learned Court also took the view that "petitioners and respondents being co-owners of the Suit property have every right to enjoy the property in a husband like manner as far as the corporeal use of the property is concerned, however, so far as the improvement in the existing structure is concerned, the consent of either of the parties that is joint owners is pre requisite." This order of the learned trial Court is impugned in this appeal. 7. When this case was taken up for hearing, Mr. Ved Raj Wazir, and Mr. B.S. Salathia, learned Senior Advocates, appearing for the parties submitted that for the purpose of the application for temporary injunction and this appeal, the above mentioned Suit property may be taken as undivided joint property of the parties and the parties as its co-owners in their respective shares and this Court may take up the question whether appellant nos. 3 & 4, who are in exclusive possession of the annexe, can be permitted to raise construction of first floor on it. 8. In this context, Mr. Ved Raj Wazir, learned counsel for appellants, made a submission that appellants state and undertake that they will not raise any construction on any open land and the construction shall be restricted to first floor on the annexe. 9. 8. In this context, Mr. Ved Raj Wazir, learned counsel for appellants, made a submission that appellants state and undertake that they will not raise any construction on any open land and the construction shall be restricted to first floor on the annexe. 9. It is in the above background, that the question framed at the outset has arisen. 10. Mr. Ved Raj Wazir, learned Senior Advocate, would say that a co-owner in exclusive possession of a portion of the joint property is entitled to raise construction on that portion and other co-sharers cannot seek injunction against him. He urged that no such construction is detrimental to the interest of other co-owners nor would it amount to ouster to other co- owners from their joint ownership. He would further say that any such construction would be subject to partition at the time of partition. In support, Mr. Wazir relief upon 2010 (2) JKJ[HC] 297 : SLJ 2009 466, 2009 (2) JKJ[HC] 313, 2004 (2) JKJ[HC] 99 : SLJ 2004 61, AIR 2001 P&H 112 and (2007) 148 PLR 423. 11. Per contra, Mr. B.S.Salathia, learned Senior Advocate, would say that a co-owner though entitled to use a particular portion of the joint property exclusively, cannot be allowed to raise a permanent construction on the said portion or change its nature because that would amount to ouster of other co-owner and would be detrimental to their interest at the time of partition. Any such attempt by a co-owner can be thwarted by other co-owner(s) by obtaining injunction including temporary injunction against such co-owner. In support, Mr. Salathia relied upon AIR 1981 SC 77 , 2003 (4) JKJ[HC] 267 : SLJ 2004 525 & 2006 (2) JKJ[HC] 414. 12. In Karbalai Begum v. Mohd. Sayeed and another, AIR 1981 SC 77 (supra), their lordships have emphasized the legal position that possession of a co-owner would be of constructive trustee on behalf of the other co-owner of the property and that right of the co-owner would be deemed to be protected by the Trustee. In Ab. Rashid v. Ab. Aziz, 2006 (2) JKJ[HC] 414 (supra), plaintiff had sought injunction restraining the defendants from raising construction over property claiming himself to be the co-owner in possession with the defendants. It was alleged that without partition of the property, the defendant was raising construction over the joint land. In Ab. Rashid v. Ab. Aziz, 2006 (2) JKJ[HC] 414 (supra), plaintiff had sought injunction restraining the defendants from raising construction over property claiming himself to be the co-owner in possession with the defendants. It was alleged that without partition of the property, the defendant was raising construction over the joint land. The defendant had resisted the Suit contending that the property was partitioned by oral partition and both the parties were in possession of the half of the share and one of them was raising construction of residential house over 3 Marlas of the land fallen to his share. In this case, this Court, while referring to Karbalai Begum's case, has observed that the dominant view of this Court is that no co-sharer has right to raise construction on the joint property without the consent of other co-sharer though it may not amount to ouster. 13. It needs to be pointed out that neither in Karbalai Begum's case nor in Ab. Rashid v. Ab. Aziz question involved was about the right of a co-owner to raise construction on that portion of the joint property of which he is in exclusive possession. In Karbalai Begum such a question was not at all involved whereas in Ab. Rashid v. Ab. Aziz this court has stated the principle that a co-sharer has no right to raise construction on joint property without the consent of other co-sharer(s) though it may not amount to ouster. Neither the defendant's possession on that portion on which he was raising the construction was undisputed nor his right to raise construction on such portion, if any, has been considered by this Court in that case. 14. Question involved in this case, however, is about an exception to the general principle that no co-owner should raise construction on the joint property without consent of other co-sharer(s). It is not rare in social set up that co-owners of property in their good days, when affiliation reins over selfishness, occupy and continue in exclusive use and possession of different portions of joint property without formal partition. Such good days are evident in this case too in respondent's say that her, husband had started living in first floor of the kothi, appellant nos. 1 & 2 in the ground floor and appellant nos. 3 & 4 were accommodated in the annexe. 15. Such good days are evident in this case too in respondent's say that her, husband had started living in first floor of the kothi, appellant nos. 1 & 2 in the ground floor and appellant nos. 3 & 4 were accommodated in the annexe. 15. It is thus, a question of lot general importance as to whether a co-owner is barred from making any construction, addition or alteration in or to the portion of joint property, which is in his exclusive possession. Neither of the aforementioned two judgments would, however, provide key to the question involved in this case. 16. Another case relied upon by respondent's counsel is Mst. Ashmi and Anr. v. Ghulam Hassan Mir and others, 2003 (4) JKJ[HC] 267 : SLJ 2004 525. Plaintiff in that case claimed to be the co-owner of the joint and unpartitioned ancestral land with defendant nos. 1 to 4. Defendant nos. 1 to 4 by an agreement had transferred the land in exchange to defendant nos. 5 to 7 and defendant nos. 5 to 7 had started construction on that land. Trial Court refused temporary injunction under Order 39 Rules 1 & 2 CPC to the plaintiff allowed the defendant nos. 5 to 7 to continue the construction on their furnishing an undertaking to the effect that in case they lose in the main Suit, they shall demolish and bring down the construction raised by them. Learned District Judge allowed plaintiffs appeal. This Court in revision petition filed by defendant nos. 5 to 7, however, found them not entitled to raise construction on the suit land taking note that the agreement executed in their favour by defendant nos. 1 to 4 was not a registered document and observing that the "transfer of an immovable property effected by un-registered deed does not vest any right in the transferee". It bears mention here that in that case question as regards the permissibility of raising construction on joint property by a co-owner was not taken up because the temporary injunction was allowed only for the reason that defendant nos. 5-7 were found to have no right in the property. 17. In Mohammad Akram Siah v. State and others, 2010 (2) JKJ[HC] 297 : SLJ 2009 466, relied upon by appellants, plaintiff and defendant, who were real brothers, had jointly purchased 5 kanals of land. 5-7 were found to have no right in the property. 17. In Mohammad Akram Siah v. State and others, 2010 (2) JKJ[HC] 297 : SLJ 2009 466, relied upon by appellants, plaintiff and defendant, who were real brothers, had jointly purchased 5 kanals of land. Defendant started construction of his residential 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. 18. In Kabla Singh and Anr. v. Pari Ram & Ors., 2009 (2) JKJ[HC] 313, one of the co-sharer(s), Kabla Singh had executed gift deed of about land measuring 10 kanals 13 marlas in favour of his son Karan Singh. The other co-owner(s) filed a Suit seeking declaration that the gift deed was void pleading inter alia that they and Kabla Singh were co-owner(s) of the land besides injunction restraining Kabla Singh and other from raising construction on the said land. This Suit was resisted by defendants on various grounds inter alia that a co-owner in possession of the property cannot be deprived of his right to use the land in his possession and that the only course open to the other co-owner(s) was to seek partition. Temporary injunction was refused by the trial Court but it was granted by the appellate Court. While granting temporary injunction, appellate Court took the view that no co-owner has any right to raise construction on joint property, without consent of the other co-owner(s). A learned Single Judge of this Court in appeal, while observing that the view taken by the appellate Court was not wholly correct, observed that "in case a co-owner wants to raise construction on the land in his possession, he may be free to do so, and when a division of a co-ownership property takes place, such co-owner can claim allotment of that portion to him." For this and other reasons, the temporary injunction granted by the appellate Court was set aside by the learned Single Judge and the matter was remanded for fresh disposal on the basis of the observations made by the learned Single Judge. 19. Another judgment relied upon by the learned counsel for the appellants is Bachan Singh v. Swaran Singh, AIR 2001 Punjab & Haryana, 112. 19. Another judgment relied upon by the learned counsel for the appellants is Bachan Singh v. Swaran Singh, AIR 2001 Punjab & Haryana, 112. This is a Division Bench Judgment and the controversy raised for consideration of the Court was like the one as raised in this case. Question was, "Whether a co-owner of the property is entitled to seek an injunction against another co-owner who has been in exclusive possession of the entire or part of the property restraining him from making any construction in that part of the property." 20. Learned Division Bench of the Punjab & Haryana High Court in that case, having regard to various case law cited on the subject, concluded in para nos. 18 & 19, which read thus: "18. On a consideration of the judicial pronouncements on the subject we are of the opinion that: (i) 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) Mere making of construction or improvement of, in, the common property does not amount to ouster. (iii) 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. (iv) 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 which is detrimental to his interest. 19. 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." 21. I have considered the judgments relied upon by the learned counsels in reference to the fact situation in which they have been rendered so that judicial opening on the question raised in this appeal is carefully recapitulated and restated. I have considered the judgments relied upon by the learned counsels in reference to the fact situation in which they have been rendered so that judicial opening on the question raised in this appeal is carefully recapitulated and restated. Also I have examined the matter beyond the judgments relied upon by the learned counsels. 22. Judicially evolved view predominantly would show that as a general principle no co-owner should raise construction on the joint property without the consent of other co-owners but this cannot be taken as a blanket bar. Judicial opinion rather is in favour of allowing construction by a co-owner on that portion of the joint property of which he has been in exclusive possession without any objection from other co-owners. This court has clearly taken such a view in Mohd. Akram Siah and Kabla Singh (supra). A co-owner, therefore, has a right to raise construction on that portion of the joint property of which he is in exclusive possession. Such construction, however, would be subject to partition of joint property at the time of partition and the co-owner having raised it can at the most claim allotment of that portion to him. A co-owner in or not in possession of any portion of the joint property is not entitled to seek injunction against construction by another co-owner on such a portion of the joint property. 23. This right of a co-owner, however, is not totally unfettered. A co-owner cannot be allowed to raise such construction or construction in such a manner that may amount to ouster of other co-owners from the joint property or is prejudicial or adverse to their interest in the joint property. Likewise, no such construction can be allowed which may diminish the value or utility of that portion of the property or the joint property on the whole. Construction also cannot be allowed if it is likely to cause inconvenience to the other co-owners in use and occupation of the portion in their possession or the joint property on the whole. In all such and similar cases, any other co-owner would be entitled to seek injunction from the court, notwithstanding that construction was being raised on the portion in exclusive possession. A comprehensive list of such cases may not be possible and situation would differ from case to case. 24. In this case, as stated above, appellant nos. In all such and similar cases, any other co-owner would be entitled to seek injunction from the court, notwithstanding that construction was being raised on the portion in exclusive possession. A comprehensive list of such cases may not be possible and situation would differ from case to case. 24. In this case, as stated above, appellant nos. 3 & 4 are in long duration exclusive use and possession of the annexe. Their possession if is undisputed and neither forcible nor to the annoyance of other co-owners. They admittedly are in possession of this annexe ever since they have shifted to the suit property. According to the respondent, it was her husband who put them in possession of the said portion of the joint property. Mere raising construction on or improvement to the joint property ipso facto does not amount to ouster of other co-owners of the property. It is rather not the case of respondent that construction of first floor on the annexe would be tantamount to her ouster from the joint, property or would in any manner diminish the value of the annexe or the joint property on the whole. It cannot be said that raising of construction on the first floor can cause any inconvenience to the respondent. On the other hand, it can be said that construction of one more floor on the annexe will increase the value of the property. 25. The respondent, therefore, has no prima facie case of seeking temporary injunction against, appellant nos. 3 & 4 restraining them from raising construction of first floor on the annexe, which is in their exclusive use and possession. 26. There is another reason, which would weigh against respondents' plea that appellants cannot raise construction on the annexe. Respondent's own say is that her husband had converted garage into annexe by constructing inter alia as many as four rooms. It is also her say that her husband made additions and alterations in the main kothi also and converted the bath rooms and a room existing at a corner of the plots into a big hall. If husband of the respondent could have raised so much construction, made additions and alterations, on/to the suit property, respondent cannot be heard saying that other co-owner(s) have no such right. 27. If husband of the respondent could have raised so much construction, made additions and alterations, on/to the suit property, respondent cannot be heard saying that other co-owner(s) have no such right. 27. For all that said and discussed above, I am not persuaded to accept the view taken by the learned trial Court. Learned trial Court has rather taken an imaginary view of the matter without identifying the real point involved, which was, to say in brief again, right of a co-owner to raise construction on a portion of joint holding of which he is in exclusive possession. 28. Viewed thus, it is held that appellant nos. 3 & 4 are entitled to raise construction of first floor on the annexe, the impugned order to that extent is not sustainable and appeal has strong merit. Construction, whatsoever, to be raised by them, however, shall be subject to the partition of the joint property at the time of partition. 29. In the course of hearing, Mr. B.S. Salathia, learned Senior Advocate had raised a point that appellant nos. 3 & 4 have committed forgery while obtaining building permission from Municipal Corporation. In this context, it is made clear that by this order, I have, decided only entitlement of appellant nos. 3 & 4 to raise construction of first floor on the annexe in their possession. This order has nothing to do with other requisites like grant of building permission by the Municipal Corporation. It is also made clear that in face of the statement made by Mr. V.R.Wazir (supra) entitlement of appellant nos. 3 & 4 to raise construction on the open land has not been considered and to that extent temporary injunction granted by the trial Court shall remain in force. 30. Appeal is, therefore, allowed and impugned order except insofar as it relates to construction on open land is set aside. 31. Record of the trial Court be remitted back along with a copy of this order.