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2015 DIGILAW 222 (JK)

Abdul Qayoom Nizami v. Mohammad Umar Nizami

2015-05-01

TASHI RABSTAN

body2015
JUDGMENT : 1. Appellants have filed the instant Civil 1st Miscellaneous Appeal seeking setting aside of order dated 30.08.2014 passed by the 2nd Additional District Judge, Jammu, whereby the Court below while allowing the application filed by Haji Mohd. Abdullah-respondent No. 22 herein, observed that Defendant/respondent No. 1-Mohd. Umar Nizami or his attorney Haji Mohd. Abdullah may raise construction over the land in dispute at their own risk and cost, but no claim for such construction shall be made by them in the event the same falls within the share of plaintiffs, appellants herein. 2. The facts in brief are that the appellants herein have filed a suit for declaration, partition, separate possession, injunction and settlement of accounts etc. before the Court of 2nd Additional District Judge, Jammu with respect to suit land measuring 10 kanals 11 marlas covered by Survey No. old/127-Min and new 729, and the same is pending disposal. Along with the suit, an application for temporary injunction was also filed and the learned Judge vide order dated 08.08.2006 directed the defendants 1 to 17 therein to maintain status-quo. The said order was extended from time to time and vide order dated 23.08.2012 the same was made absolute till the disposal of the suit. Against the said order, respondents 1 & 22 herein filed CIMA No. 412/2012 before this Court contending therein that out of the suit property, Mohd. Umar Nizami-respondent No. 1 herein executed a General Power of Attorney in favour of Haji Mohd. Abdullah-respondent No. 22 herein on 10.12.2010 with respect to 12 marlas of land thereby authorizing him to raise any type of construction over it. It was contended that on the strength of said Power of Attorney, Haji Mohd. Abdullah raised the construction of a Hotel building to the level of first floor. Meanwhile, an application came to be filed by Abdul Qayoom Nizami and another, appellants herein, seeking the restrain order. This Court vide order dated 06.02.2014 while setting aside the order dated 23.08.2012 directed the trial Court to decide the injunction application and other ancillary applications afresh and till then status-quo was directed to be maintained. 3. Accordingly, the trial Court while deciding the applications under reference, vide order dated 30.08.2014 allowed the application filed by Haji Mohd. Abdullah-respondent No. 22 herein with the observation that defendant No. 1-Mohd. Umar Nizami or his attorney Haji Mohd. 3. Accordingly, the trial Court while deciding the applications under reference, vide order dated 30.08.2014 allowed the application filed by Haji Mohd. Abdullah-respondent No. 22 herein with the observation that defendant No. 1-Mohd. Umar Nizami or his attorney Haji Mohd. Abdullah may raise construction over the land in dispute at their own risk and cost, but no claim for such construction shall be made by them in the event the same falls within the share of plaintiffs, appellants herein. It is this order which is challenged by the plaintiffs-appellants herein. 4. Mr. Bhat, learned counsel for appellants, vehemently argued that it is not being claimed by respondent No. 22 that he is raising the construction of hotel for and on behalf of respondent No. 1 as an Attorney Holder; rather he claims to be the bonafide purchaser of the land-in-question and' is constructing the hotel over it being its owner. He further argued that the trial Court has wrongly concluded that a co-sharer in possession has a right to raise construction over the property-in-question, whereas every co-sharer has a right to use the property commonly and the same cannot be put to such use by one of the co-sharers that others are deprived of its common use. Further, the construction of the hotel is sought to be made by a stranger, thus common use of the property has absolutely been denied to other co-sharers. Mr. Bhat while relying on a case, titled as, Abhey Singh v. Gian Singh, 1971 JKLR 326 , argued that respondent No. 22 has no right on his own to raise constructions over the suit property, as he was guilty of suppressing the material facts before the trial Court. 5. On the other hand, Mr. O.P. Thakur, learned counsel appearing for respondent No. 1 pleaded that in the year 1983 respondent No. 1 acquired a piece of Shamlat land under Khasra No. 127-Min, measuring 10 kanals 11 marlas. The said land has been shown in his possession in the revenue records. It is contended that if the appellants were aggrieved of the aforesaid settlement records, they could have challenged the same before the Deputy Commissioner concerned under Section 32 of the Act. Since the appellants have failed to do so, the rights of respondent No. 1 over the suit property has finally been determined and decided. It is contended that if the appellants were aggrieved of the aforesaid settlement records, they could have challenged the same before the Deputy Commissioner concerned under Section 32 of the Act. Since the appellants have failed to do so, the rights of respondent No. 1 over the suit property has finally been determined and decided. He further pleaded that respondent No. 1 executed the Power of Attorney in favour of respondent No. 22 on 10.12.2010 in respect of the suit property for raising construction of a hotel building and the construction material was supplied by appellant No. 1 and respondent No. 4 herein. He thus pleaded that the construction of hotel by respondent No. 22 over the suit land was very much within the knowledge of appellant No. 1. 6. In support of his arguments, Mr. Thakur also relied upon certain judgments, reported as, Tarsem Singh v. Parkash Kaur, AIR 2002 P&H 258 , Bachan Singh v. Swaran Singh, AIR 2001 P&H 112 , Chhedi Lal v. Chhotey Lal, AIR (38) 1951 Allahabad 199 and Mohammad Akram Siah v. State, 2009 (11) SLJ 466. 7. Heard learned counsel for the parties. 8. Admittedly, land measuring 10 kanals 11 marlas comprised under Khasra No. 729 is a shamlat land and the same is in possession of respondent No. 1. Respondent No. 1 executed the power of attorney in favour of respondent No. 22 for raising the construction of hotel over a piece of land measuring 12 marlas out of the suit property. 9. Though the property is claimed to be the joint property, but as per the revenue record, as claimed by respondent No. 1, the same is in his exclusive possession. The law is settled that where a co-sharer is in exclusive possession of a joint holding, he can even transfer the property within his share. A coordinate Bench of this Court In case, titled as, Mohammad Akram Siah v. State & others, 2009 (11) SLJ 466 has held as under: “5.......In my opinion where a co-owner occupies a particular portion and utilizes by doing so, if not disadvantage, loss or de-valuation of the joint property occurs then balance tilts, equitable relief as an object of protecting the properties 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. In the instant case the stand of the appellant throughout has been that there has been private partition in between the parties. It is only 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.” 10. It is not case of appellants that by raising construction over the disputed land by respondents 1 & 22 the value of remaining property would get diminished or devalued. A coordinate Bench of this Court in case, titled as, Kabla Singh v. Pari Ram, 2009 (2) JKJ 313 , has held that a co-owner in possession of land is free to raise construction, paragraph-15 whereof is reproduced hereunder: “15. 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 co-ownership property takes place, such co-owner can claim allotment of that portion to him.” 11. It has further been held in the above-titled case that if ultimately the partition takes place, the said portion can be allowed to be retained by that co-owner. 12. Though it has been observed in the order impugned that respondents 1 or 22 may raise construction, but the same has been kept subject to the approval from the local authorities. It has also been observed that respondent No. 22 would have no independent right in the construction raised or sought to be raised over the land mentioned above and the same shall be at their own risk and cost. It has also been held that in the event of success of plaintiffs-applicants in the suit, no claim for construction shall be made by respondents 1 and 22 herein. Thus, while deciding the application filed by respondent No. 22 herein, the trial Court has not determined the rights of the parties. The suit is yet to be adjudicated upon by the trial Court. Therefore, I do not deem it proper to interfere with the order passed by the trial court. 13. Viewed thus, the appeal fails and the same is, accordingly, dismissed. Interim direction, if any, shall, stand vacated. 14. Record of trial Court be sent back forthwith along with a copy of this order.