RSA No.4688 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4688 of 2009. Decided on: December 18, 2009. Ram Chander .. Appellant VERSUS Gobind Ram and others .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.Mahavir Sandhu, Advocate, for the appellant. M.M.S. BEDI, J. (ORAL) Suit of the plaintiff-appellant for declaration and injunction to restrain defendant-respondent Nos.1 to 4, from raising any type of construction over the suit land mentioned in the site plan attached with the plaint has been dismissed by the Courts below. The Courts below have arrived at a definite finding that the plaintiff- ...1 RSA No.4688 of 2009 appellant has been using part of the joint land as his residence and he himself is in possession of two rooms constructed on the rear portion of the property, as such, has got no right to restrain the defendants-respondents from raising construction over the front portion of the suit land. Courts below have taken into consideration the portion of the joint land in possession of the plaintiff and applying the principle of estoppel that he himself has raised construction on the joint land would not permit him to restrain the defendants- respondents from exercising the same right. The possession of the defendants-respondents on part of the property is also apparent from the judgments passed by the Courts below. The subject matter is covered by the ratio of the judgment in case Bachan Singh Vs.Swaran Singh, (2000-3), The Punjab Law Reporter, Page-416, wherein the following principles have been laid down on the basis of the consideration of various judicial pronouncements pertaining to the right of co-owner to raise construction: - (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 ...2 RSA No.4688 of 2009 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 the interest. Counsel for the petitioner placed reliance upon case T.Lakshmipati and others Vs.P.Nithyananda Reddy and others, 2003(3) RCR (Civil), Page 305, to contend that when the property is held by several co-owners, each co-owner has interest in every inch of common property but his interest is qualified and limited by similar interests of other co-owners and that co-owners cannot take exclusive possession of the property nor commit an act of waste, ouster or illegitimate use and if he does so, he can be restrained by an injunction. Applying the ratio of this judgment to the facts of the present case, I am of the opinion that the plaintiff himself being in possession of part of the property as co-sharer and having ...3 RSA No.4688 of 2009 himself raised construction on the property cannot say that raising of construction by the defendants on the co-owned property would tantamount to wasting, or illegitimately using the property in dispute. Since both the parties are in joint possession in different portions of the property, the remedy available to the plaintiff in this case will be to seek separate possession. The ratio of the ruling T.Lakshmipathi Reddy and others (supra), is not applicable to the facts of the present case. Examining the facts and circumstances of this case and the finding of fact given by the Courts below, no ground is made out for interference and the appeal is, thus, dismissed without prejudice to the rights of the parties to claim separate possession by seeking partition. (M.M.S.BEDI) JUDGE December 18, 2009. rka ...4