Civil Revision No. 493 of 2009 (1) In the High Court of Punjab & Haryana at Chandigarh Civil Revision No. 493 of 2009 (O&M) Date of decision : 4.2.2009 Kadam Singh ..... Petitioner vs M/s C.H.D. Developers Ltd. And others ..... Respondents Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Jai Vir Yadav, Advocate, for the petitioner. Mr. Ashok Aggarwal, Senior Advocate with Mr. Sumeet Goyal, Advocate, for respondents 1 and 5. Rajesh Bindal J. The plaintiff has approached this court by filing the present petition challenging the order passed by the learned Lower Appellate Court whereby that of the trial court was reversed in an application filed under Order XXXIX Rules 1 and 2 CPC for grant of interim injunction. Briefly, the facts are that the petitioner-plaintiff filed suit for permanent injunction restraining the respondents-defendants from raising any construction or carving out plots to develop colony or by making roads etc. on the plea that as per revenue records, the khewat in question is un- partitioned property owned by various persons and till such time the partition is effected by metes and bounds, no co-sharer should be permitted to raise construction thereon. The suit was defended by respondents no. 1 and 5 with the plea that there was mutual partition amongst the co-sharers who are in respective possession of their share and the respondents are legally entitled to raise construction or carve out plots in the area owned by them which is in their exclusive possession. The learned trial court allowed the application filed by the petitioner-plaintiff restraining the respondents from raising any construction over the suit property. However, the learned Lower Appellate Court finding merit in the appeal filed by the respondents reversed the order passed by the trial court and dismissed the application for interim injunction. It is against this order that the petitioner-plaintiff is before this court. Civil Revision No. 493 of 2009 (2) Learned counsel for the petitioner strenuously argued that non- grant of interim injunction by the learned court below has prejudiced the case of the petitioner as he will suffer irreparable loss and injury in case the respondents are allowed to raise construction on the suit land without the joint khewat having been partitioned. It is the admitted case of the parties that the khewat has not been formally partitioned. The fact is established from the development which took place during the pendency of the suit where the respondents filed application for partition of the suit land before the Assistant Collector under Section 111 of the Punjab Land Revenue Act but the same was subsequently withdrawn. The respondents are, in fact, developing the land without there being any license to them granted by any competent authority in their favour. With the type of development or the construction that the respondents are trying to raise on the suit land, the nature thereof will change completely as a result of which the petitioner will be unable to use the land in his possession in a proper manner. As per the plan produced in the court, the petitioner is in possession of his share of land in two chunks. The submission is that he has khal through which he is getting water from the canal and also tubewell installed on one chunk of land and in case any construction activity takes place on the land in between, the petitioner will not be able to take the water to his other part of the land and the other part becomes useless. He further submitted that there is a passage for approaching his land, the same will also be blocked as a result of any construction activity carried out by the respondents. In support of his arguments, reliance was placed upon Maharwal Khewaji Trust (Regd.), Faridkot vs Baldev Dass 2005 (1) Civil Court Cases 430 (SC), New India Construction Co. Ltd. and others vs Desh Raj and others 2007 (1) RCR (Civil) 387, Rishal Singh and others vs Shri Bhagwan and another (2007-2) 146 PLR 325, Samma Singh and another vs Kapur Singh and others 1996 PLJ 599, and Ram Niwas and others vs Jai Ram alias Tej Ram and others 2000 (2) PLJ 447. To controvert the contentions raised by the learned counsel for the petitioner, learned counsel for the respondents submitted that it is the admitted case of the petitioner-plaintiff in the plaint that after the purchase of property, the respondents are developing the land by carving out plots and providing infrastructure. As per the revenue record produced by the Civil Revision No. 493 of 2009 (3) petitioner himself with the plaint in the form of jamabandi for the year 2002-03, it is evident that all the co-sharers are in exclusive possession of the land to the extent of their share though it was sought to be argued that the petitioner is in possession of more than his share but that may not be relevant for the purpose of decision of lis between the parties at this time. Learned counsel for the respondents further submitted that it is the admitted case of the petitioner himself in the plaint that the respondents are developing a colony in the suit land after purchasing from the earlier owners who had sold the land to the respondents and handed over actual physical possession of the area as per their share. All the co-sharers are in exclusive possession to the extent of their share in the khewat even though there is no formal partition as such. It is only one of the co-sharers who is raising hue and cry, otherwise all other co-shares are not aggrieved by the action of the respondents. It is a case where the petitioner will not suffer any irreparable loss and balance of convenience is also not in favour of the petitioner, rather it is the respondents who will suffer irreparable loss in case the project is delayed. He produced an affidavit sworn by respondent no. 1 stating therein that the development is being carried out by the respondents at their own risk and responsibilities. In case the land in dispute falls in the share of the petitioner on completion of any partition proceedings, the construction, if any, raised thereon, shall be removed by the respondents at their own costs and they will not claim any benefit of the construction carried out by them on the land in dispute at the time of partition proceedings. He further submitted that though the petitioner has sought to claim that he is getting canal water through the khal but no document has been placed on record to substantiate the claim. He further submitted that as far as the rasta is concerned, the respondents as against the rasta which is quite small in width would be providing pacca road to approach his land. However, in case the petitioner is not willing to accept that, they will even leave that rasta as such also. Judgments of this court in Bachan Singh vs Swaran Singh 2000 (3) PLR 416 and M/s. DCM Shriram Consolidated Ltd. 2006 (2) RCR (Civil) 118, were cited to submit that mere making of construction or improvement in the common property does not amount to ouster of co-sharer. It is only if by act of one of the co-owner, the value of the property is diminished, the other can seek injunction. Civil Revision No. 493 of 2009 (4) Heard learned counsel for the parties and perused the record. Though much arguments have been addressed by the counsel for the parties, however, still in my opinion, it would be in the interest of both the parties if I deal with the contentions raised briefly lest the case of either of the parties is prejudiced. From the jamabandi produced before this court at the time of hearing pertaining to the year 2002-03, as was relied upon by the petitioner-plaintiff in the plaint, it is evident that all the co- sharers in the land are shown in exclusive possession of the area owned by them. It is the admitted case of the petitioner in the plaint that the respondents wanted to raise construction on the area in their possession for the development of a colony. The same in my view will not diminish the value of the property in the area. From the site plan before this court, learned counsel for the petitioner had submitted that there is a khal in the north of the plan which is forming part of khasra no. 16/25. Water supply to the khal from the canal taking a round of khasra no. 16/25 moves towards the West. The land of the petitioner is located in the Southern side where two acres of land is situated. Leaving one acre land in between which forms part of khasra no. 5 whereas in possession of the petitioner is khasra no. 24/6 and 15, thereafter, also leaving at least 3-4 kills in between is another chunk of about 3-4 acres of land in possession of the petitioner. As to how the petitioner was carrying water channel through the land, which is in exclusive possession of other co-sharers, is not borne out from the record. As far as rasta is concerned, in the western side of khasra no. 24/6 and 15 a rasta is shown through which the petitioner has approached to one chunk of his land measuring about 2 acres. As regards this, the fair stand of the learned counsel for the respondents is that as against this rasta of small width, they will provide a metaled road to enable the petitioner to approach his land. However, still if the petitioner is so obsessed with the old rasta they will leave that intact. Further definite stand of the respondents is that though factually all the co-sharers are in exclusive possession of the land owned by them as is evident from the jamabandi produced by the petitioner-plaintiff and in the partition proceedings normally long possession of the parties on the land is protected. However, still the respondents will not claim any benefit of any area in their exclusive possession or the same having been developed by them at the time of Civil Revision No. 493 of 2009 (5) partition proceedings and further in case any area which is now in their possession comes to the share of the petitioner, the respondents will remove the entire construction raised thereon at their own cost. Coupled with this fact as far as the legal proposition is concerned, in Bachan Singh's case (supra), a Division Bench of this court considered an identical issue as to whether a co-owner of a property is entitled to seek an injunction against other co-owner who has been in exclusive possession of the entire or part of the property. The proposition is summed up as under:- “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. 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 Civil Revision No. 493 of 2009 (6) doing any act in exercise of his right to every inch of it which he is doing as a co-owner.” The view expressed in Bachan Singh's case (supra) was followed by this court in Jai Singh's case (supra), where the matter was remitted back to the court below for reconsideration as the view expressed in the order impugned therein was not in conformity with the aforesaid proposition of law. In so far as the judgments cited by learned counsel for the petitioner are concerned, in Maharwal Khewaji Trust's case (supra), the court granted injunction finding that no case for irreparable loss or balance of convenience was made out by the other party therein. In New India Construction Company's case (supra), one of the co-owner was in exclusive possession of the entire land and his action was resulting in ouster or adverse to other co-owner who was out of possession. The principle of law laid down in Bachan Singh 's case (supra), was followed in that case. The judgments in Samma Singh, Ram Niwas and Rishal Singhs' cases (supra) are single Bench judgments and cannot be preferred over the Division Bench of this court in Bachan Singh's case (supra). For the reasons mentioned above, I do not find any merit in the present petition. The same is, accordingly, dismissed. However, I deem it appropriate to direct the learned court below to expedite the trial of the suit and decide the same within one year. 4.2.2009 ( Rajesh Bindal) vs. Judge