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2017 DIGILAW 285 (HP)

Sunil Kumar v. Rajeev Kumar

2017-04-01

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. 1. The present petition is maintained by the petitioner under Article 227 of the Constitution of India, against the order dated 28.6.2016, passed by the learned Additional District Judge- III, Kangra at Dharamshala, District Kangra, H.P., in RBT Civil Misc. Appeal No.2-P/XIV/2016, whereby the order dated 22.3.2016, passed by the learned Civil Judge (Senior Division), Palampur in CMA No.56/2016, has been set aside. A prayer has been made to set aside the order passed by the learned Additional District Judge-III, Kangra at Dharamshala, District Kangra, H.P. 2. Briefly stating the facts giving rise to the present petition are that the plaintiff/petitioner (hereinafter to be referred as “the petitioner”)referred to be has filed a suit for grant of decree of permanent prohibitory injunction in favour of the petitioner and against the respondents, their agents, representatives labourers, contractors etc. to do away with digging and laying plinth, raise construction, erecting pillars, shuttering putting slab and occupying best and valuable portion of the land comprised in Khata No.24, Khatauni No.35, Khasra No.1864, total land measuring 00-10-46 hectares, situated at Mohal & Mauza Ghuggar, Tehsil Palampur, District Kangra, H.P. which land is owned and possessed by the plaintiff, defendants alongwith other shareholders and recorded as such in the jamabandi for the year 2012-13 and in the alternative, suit for mandatory injunction, if in case, the defendants succeed in raising construction on the suit land. 3. The petitioner/plaintiff (hereinafter to be called as “the petitioner”) had filed an application under Order 39 Rules 1 and 2 CPC for grant of ad-interim injunction in his favour in the Court of Civil Judge(Sr. Division), Palampur vide Civil Suit No.60 of 2016, which was registered as CMA No.56 of 2016. It has been averred that the learned trial Court after hearing the counsel for the petitioner, passed interim order restraining the respondents from changing the nature of the suit land till further orders. Division), Palampur vide Civil Suit No.60 of 2016, which was registered as CMA No.56 of 2016. It has been averred that the learned trial Court after hearing the counsel for the petitioner, passed interim order restraining the respondents from changing the nature of the suit land till further orders. It has been averred that the learned trial Court after hearing the parties, dismissed the application under Order 39 Rule 4 CPC filed by the respondent No.1 being devoid of any merit and the application filed by the petitioner under Order 39 Rules 1 and 2 was allowed and respondent No.1 was directed to maintain status quo qua the nature of the suit land till the pendency of the case or till the land is not partitioned by the metes and bounds and respondents No.2 to 4 were also restrained from interfering in any manner and raising any construction over the suit land during the pendency of the suit. 4. It has been contended that respondents No.1 to 4 filed an appeal under Order 43, CPC against the order dated 22.3.2016, passed by the learned Civil Judge(Sr. Division), Palampur in CMA No.56 of 2016. However, the learned Appellate Court, after hearing the parties, allowed the appeal and the order of injunction passed by the learned trial Court has been set-aside and further it has been held that the respondent/defendant No.1 has right to raise construction over his share. 5. It has been averred that the H.P. State Electricity Board Ltd. has issued a notice to respondent No.1 conveying that respondent No.1 has started illegal/ unauthorized construction in Mauza Ghuggar without approval/ permission of the Competent Authority. 6. It has further been averred that the learned lower Appellate Court has committed material irregularity in passing the impugned order by setting aside the detailed order passed by the learned trial Court, which is being arbitrary, illegal, unjust and is liable to be quashed and set aside. 7. It has been alleged that the learned Lower Appellate Court has erred in law in setting aside the well reasoned order passed by the learned trial Court and the same is liable to be quashed and set aside. 8. 7. It has been alleged that the learned Lower Appellate Court has erred in law in setting aside the well reasoned order passed by the learned trial Court and the same is liable to be quashed and set aside. 8. It has also been submitted that since the suit land is in joint ownership of the petitioner and respondent No.1 and other co-sharers and the same has not been partitioned, so respondent No.1 cannot be permitted to raise construction over the joint property even on the best and valuable portion of the suit land, which is detrimental to the interest of the petitioner. It has been alleged that the learned Appellate Court has vacated the adinterim order passed by the learned trial Court. It has further been alleged that one of the co-sharers, namely Bhupinder Singh has got his land partitioned and has raised construction. So, he has nothing to do with the suit land. It has also been submitted that neither the petitioner is in separate possession nor the respondent/defendant No.1 is in separate and exclusive possession qua their shares in the suit land. 9. Heard learned counsel for the parties. 10. Learned counsel for the petitioner has argued that the learned Court below has failed to take into consideration the fact that the land is still joint and is not partitioned, but the learned Appellate Court has set aside the judgment of the learned lower Court without taking into consideration this fact. He has argued that the respondent No.1/defendant cannot raise construction over the suit land until and unless the suit land is partitioned. He has further argued that the suit land is still joint. On the other hand, the learned counsel for the respondents has argued that the land is in joint possession of the parties and they are in exclusive and separate possession of the suit land and the petitioner/plaintiff is in the exclusive possession of his share, so he has already raised construction on his land. So far as the suit land is concerned, the same is less than 5 Sq.mtrs. In rebuttal, the learned counsel for the petitioner has argued that the share of the plaintiff though is only 5 Sq.mtrs, but the share of his family comes to 25 Sq.mtrs. He has further argued that the land is still joint. 11. So far as the suit land is concerned, the same is less than 5 Sq.mtrs. In rebuttal, the learned counsel for the petitioner has argued that the share of the plaintiff though is only 5 Sq.mtrs, but the share of his family comes to 25 Sq.mtrs. He has further argued that the land is still joint. 11. To appreciate the arguments uttered by the learned counsel for the parties, I have gone through the record in detail. Though, it is settled law that each co-sharer is supposed to be in possession of each and every inch of the joint property until and unless the same is partitioned, but if the co-share is in exclusive possession of his share from time immemorial and he is raising construction on his share, whether the same can be allowed till the partition is done or not, is to be considered in the facts and circumstances of the case only. Law on the point is that no cosharer can raise construction on the land of other co-sharers. It has come on record that the plaintiff has already raised construction on the part of his share. This Court in a case titled Krishna Devi Vs. Ulfat & Ors. Reported in 2016(1) Him.L.R.206, has held: “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’. 12. In the present case, one of the co-sharer Bhupinder had already constructed his house, but the construction was not objected to by the plaintiff, then as a matter of equity also defendant No.2, cannot be stopped to raise construction on the suit land and the plaintiff in such a case is estopped from raising any objection to the construction by other co-sharer. When he had not objected to the construction of one of the co-sharer whose construction of the house is completed. The plaintiff has also raised construction on the portion of his land. Further, the share of the plaintiff in the suit land is only to the extent of 5 Sq.mtrs. When he had not objected to the construction of one of the co-sharer whose construction of the house is completed. The plaintiff has also raised construction on the portion of his land. Further, the share of the plaintiff in the suit land is only to the extent of 5 Sq.mtrs. Mere making of construction or improvement in the common property does not amount to ouster. Taking the case in hand, there is no pleading to the effect that any act of defendant No.2 has amounted to ouster of the plaintiff from the suit land when defendant No.2 started raising construction on the separate possession. Moreover, plaintiff himself is in separate possession of his part in the suit land. The equity in this case also lies in favour of defendant No.2. The balance of convenience is also in favour of defendant No.2. All the ingredients in this case to grant injunction are not there in favour of the plaintiff/applicant. Therefore, this Court finds that the order passed by the learned lower Appellate Court cannot be said to be perverse and the order passed by the learned Appellate Court, as discussed hereinabove, is as per law. So, this Court has no occasion to exercise extra ordinary powers vested under Article 227 of the Constitution of India to interfere with the order passed by the learned Appellate Court below. The petition is devoid of merits and deserves dismissal. 13. In view of the above discussion, the petition is dismissed. Pending applications, if any, also stand disposed of.