Krishan Kumar v. Harphool Dass & Ors.

Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. P. S. Dhaliwal, Advocate for the petitioner. L. N. MITTAL, J (ORAL) Defendant No.1-Krishan Kumar has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 04.06.2010 Annexure P-2 passed by learned Additional District Judge, Muktsar thereby accepting miscellaneous appeal filed by plaintiffs/respondent Nos.1 and 2 against order dated

28.05.2010 Annexure P-1 passed by learned Additional Civil Judge (Senior Division), Muktsar, whereby plaintiffs' application for temporary injunction stood dismissed. Lower appellate Court vide impugned order Annexure P-2 has allowed the plaintiffs' application for temporary injunction and has restrained defendant No.1 from raising construction over the suit property till disposal of the suit. Plaintiffs and defendants are co-sharers in the suit property, which has not yet been partitioned. Grievance of the plaintiffs is that defendant No.1 threatened to raise construction on valuable part of the suit land without seeking partition. Accordingly the plaintiffs sought permanent injunction and also claimed temporary injunction. C.R. No.4967 of 2010 -2- Defendant No.1 alleged that he is raising construction in 2 kanals land which is in his possession and which is less than his share in the joint land.

It was also pleaded that some other co- owners out of proforma defendants have already raised construction in part of the joint land. Learned Trial Court vide order Annexure P-1 dismissed the plaintiffs' application for temporary injunction. However, learned lower appellate Court has allowed the appeal preferred by plaintiff Nos.1 and 2 and thereby allowed plaintiffs' application for temporary injunction. Feeling aggrieved, defendant No.1 has preferred the instant revision petition. I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner vehemently contended that defendant no.1 is raising construction within area which is not in excess of his share in joint land and, therefore, injunction could not be granted. The contention cannot be accepted. Admittedly, the joint land has not yet been partitioned. There is no material on record to depict that defendant No.1 ever came in exclusive possession, even as cosharer, of the specific portion of the land over which he is raising construction.

When defendant No.1 was not in exclusive possession of the said portion of the joint land, he has no right to raise construction thereon without getting the joint land partitioned. The contention that defendant No.1 has already raised substantial construction is of no help because plaintiffs immediately filed the suit and if defendant No.1 hurriedly raised some construction, he cannot take advantage of his own wrong. C.R. No.4967 of 2010 -3- Learned counsel for the petitioner relied on judgment of Hon'ble Supreme Court in the case of ECE Industries Ltd. Versus S.P.REal Estate Developers P.Ltd. and another, 2009 (4) RCR (Civil) 315. It is surprising that learned counsel for the petitioner has cited this judgment which has not even remote applicability to the facts of the instant case. In that case, the plaintiff owner itself had entered into development agreement with the defendants, who pursuant to the development agreement, were raising construction.

In the instant case, however, parties are joint owners of the land and defendant No.1 wants to usurp valuable part of the suit land without getting it partitioned. Defendant No.1 cannot be permitted to do so to the detriment of the plaintiffs, who are co-sharers in the joint land. Learned counsel for the petitioner also contended that some other co-sharers have also raised construction in joint land. However, plaintiffs have not raised any construction in the joint land and, therefore, plaintiffs are not estopped from restraining defendant No.1 from raising constitution on specific portion of the joint land without getting it partitioned. Learned counsel for the petitioner has also cited judgment of Supreme Court in the case of Narendra Kante versus Anuradha Kante and others, 2010 (1) RCR (Civil) 465. However, in that case, there was a family settlement and there was also deed of family settlement.

It is not so in the instant case. It is not the case of defendant No.1 that there was even any informal arrangement among the co-sharers regarding exclusive possession over specific portions. Defendant No.1 of course claimed to be in exclusive C.R. No.4967 of 2010 -4- possession of the land over which he wants to raise construction, but there is not even a shred of material on record to substantiate the said plea of defendant No.1. For reasons recorded hereinabove, I find no illegality in the impugned judgment of the lower appellate Court. Defendant No.1 petitioner has been rightly restrained from raising construction in the portion of joint land without getting the joint land partitioned because prima facie defendant No.1 was not in exclusive possession of the said portion. The revision petition is without any merit and is accordingly dismissed in limine. However, nothing observed hrereinbefore shall be construed as an expression of opinion on the merits of the suit.

09.08.2010 A. Kaundal ( L. N. MITTAL ) JUDGE