IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 283 of 2010. Judgment reserved on 4.5.2011. Date of decision: 3.6.2011. Sita Ram …Petitioner. Versus Ram Lal …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. G.D. Verma, Sr. Advocate with B.C. Verma, Advocate. For the respondent: Mr. Mohan Singh, Advocate. Deepak Gupta, J. 1. The petitioner (hereinafter referred to as the defendant) has challenged the order dated 17.7.2010 passed by the learned Additional District Judge, Solan whereby he dismissed the appeal of the defendant and confirmed the order dated 18.2.2010 passed by the learned Trial Court restraining the defendant from raising construction over the suit land during the pendency of the main suit. 2. The undisputed facts of the case are that the suit land bearing khasra No. 59/60 is a joint holding measuring 225-10 bighas. This land is jointly owned by a large number of co-owners. Admittedly the defendant started raising construction on a portion of the 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. said land : 2 : and even as per the averments made in para 3 of the plaint before the suit was filed 10 pillars had been raised and preparation was going on for laying a lintel. The grievance of the plaintiff-respondent was that the defendant is trying to grab the front and more valuable portion of the land touching the road. 3. Both the Courts below came to the conclusion that this is the joint land and the defendant cannot raise any construction thereon. Both the Courts below totally lost sight of the fact that though the land was joint, it was a huge piece of land measuring 225 bighas. There were various co-owners and it is also not disputed that a number of co-owners have raised their exclusive construction on portions of this land. The case of the defendant is that even if he raises the construction, the same will not in any manner affect the rights of the other co-owners, since there will be sufficient vacant land to satisfy the need of other co-owners. It has also been urged that a number of other co-owners have raised their buildings, but at that time the plaintiff has not raised any objection. The petitioner further alleges that he has spent almost two and a half lakh for preparation of the site and for raising the construction. 4. It is true that normally when land is joint and an co-owner who is not in exclusive possession thereof : 3 : cannot be permitted to grab the better portion of the property. However, as has been repeatedly said that each case has to be decided on its own merits. Here the entire land is 225 bighas and construction will be carried in less than 0.5% of the land. No co-owner except the plaintiff has objected to the construction. It is also admitted that number of other co-owners have already raised their individual houses on the joint land. 5. From the material on record, it is also apparent that the construction had reached upto the lintel level at the stage when the suit was filed. The plaintiff did not come to the Court immediately when the construction was started and the defendant has already spent a huge amount of money. In case he is not permitted to complete the construction irreparable harm and injury shall be caused to him which cannot be compensated in terms of costs. 6. On the other hand in case the defendant is allowed to complete the construction, the rights of the plaintiff can be protected by ordering that in case any land on which construction is raised by the defendant falls to the share of plaintiff, the defendant shall not claim any equity or compensation during partition on the basis of such construction. He shall raise the construction at his own risk and cost. In case during partition proceedings the said area falls to the share of the plaintiff then the : 4 : defendant shall not object to the same and shall hand over the constructed portion without claiming any compensation from the plaintiff. 7. In view of the above discussion, the present petition is allowed. The interim application filed by the respondent is rejected and the petitioner-defendant is allowed to continue with the construction. However, it is made clear that this construction shall be carried out at the risk and cost of the defendant and in case in partition proceedings the land under said construction does not fall to his share, he shall neither claim any equity nor compensation only on the ground that he has raised construction over this portion of the land. Petition is disposed of in the aforesaid terms. No costs. (Deepak Gupta) Judge 3rd June, 2011. (Krn Guleria)