IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 7735 of 2009 Date of decision 17th March 2010 M/s Vardan Medic Missions College & Nursing and another .......…Petitioners Vs. Rohtash and another …………Respondents CORAM:- HON'BLE MR. JUSTICE L.N.MITTAL Present: - Mr. N.K.Joshi, Advocate for the petitioners Mr. S.S. Swaich, Advocate for respondent No.1. ............ ……. L.N.MITTAL, J (ORAL) ....................... Defendant Nos. 2 and 3 have filed the instant revision petition under Article 227 of the Constitution of India for setting aside judgment dated 9.12.2009 (Annexure P-7) passed by learned Additional District Judge, SAS Nagar, Mohali. Respondent No.1 herein filed the suit against the petitioners- (defendant Nos. 2 and 3) and proforma respondent No.2 (defendant No. 1) alleging that the plaintiff is co-sharer along with defendants and others in suit land measuring 13 kanals and 12 marlas and the parties and other co-sharers are in joint possession thereof, but the defendants want to raise construction on valuable portion of the suit land and want to change the nature of the suit land without getting it partitioned. The plaintiff, therefore, claimed permanent injunction restraining defendants from raising any construction in the suit land and from changing the nature thereof. The plaintiff also moved application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure seeking temporary injunction to the same effect till final decision of the suit. The defendants inter alia pleaded that Baldev Singh, defendant No. 1 (proforma respondent No.2 herein), was in exclusive possession of the suit land. Defendents No. 2 and 3 have purchased 3 kanals and 2 marlas land and have taken on 99 years lease, 3 kanals and 15 marlas land from Baldev Singh, defendant No.1 and are in possession of the said total land measuring 6 kanals 17 marlas out of the said land and intend to raise construction on 6 kanals 17 marlas land only. Learned Civil Judge (Junior Division), Kharar vide order dated 14.10.2009 (Annexure P-1) disposed of the application of the plaintiff for temporary injunction directing the parties to maintain status quo regarding possession over the suit property with liberty to raise construction at their own risk till final decision of the suit. However, in appeal preferred by the plaintiff against the said order of the trial Court, learned Additional District Judge vide impugned judgment dated 9.12.2009 (Annxure P-7) set aside the order of the Trial Court and allowed the application of plaintiff for temporary injunction thereby restraining the defendants from changing the nature of suit land by raising construction thereon during the pendency of the suit. Feeling aggrieved, defendants No. 2 and 3 have preferred this revision petition. I have herd learned counsel for both the parties and perused the case file. At the outset, it may be noticed that defendants No. 2 and 3 intend to raise construction over 6 kanals 17 marlas land out of the suit land which is not in excess of the share of the defendants in the joint suit land. It is also to be noticed that even according to the learned counsel for plaintiff-respondent No. 1, share of plaintiff-respondent No. 1 is to the extent of 1 kanal 13.8 marlas only in the suit land measuring 13 kanals 12 marlas. According to the revenue record, Baldev Singh, defendant No.1 co-sharer was in exclusive possession of the entire suit land. Now defendant No. 1 is said to have delivered possession of 6 kanals 17 marlas land to defendant Nos. 2 and 3 who want to raise construction thereon. Learned counsel for the petitioners/defendant No. 2 and 3 on instructions from Bhupinder Singh, President of petitioner No. 1, who is stated to be present in person in the Court, states that the petitioners shall raise construction over 6 kanals 17 marlas land at their own risk and responsibility and the petitioners also undertake to demolish the construction raised by them from the portion if any that may fall to the share of any other co-sharer including the plaintiff in the event of partition. Learned counsel for the petitioners relied on a Division Bench judgment of this court in the case of Bachan Singh vs. Swaran Singh VOL. CXXVI-(2000-3) PLR 416 where in following principles of law have been laid down: 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 doing any act in exercise of his right to every inch of it which he is doing as a co-owner. This judgment has been followed by this Court in 2008 (1) Law Herald (P&H) 284 titled as Surjit @ Surjit Singh Kataria vs. Raj Hans, 2008 (3) Law Herald (P&H) 1957 titled as Mohan Lal vs. Preet Kumar and 2002 (1) ICC 517 titled as Tarsem Singh and another vs. Smt. Parkash Kaur. Reliance has also been placed on the case of Maman Chand vs. Kamla, 1996 (2) PLR 147 wherein also it has been held that a co-sharer cannot be restrained at the instance of others from enjoying property in his possession and injunction cannot be granted from raising construction. On the other hand, learned counsel for respondent No.1 contended that judgment in the case of Bachan Singh (Supra) does not permit raising of huge and extensive construction which may be difficult to be removed in the event of partition. In support of this plea, reliance has been placed on a judgment of this Court in 2000(3) Civil Court Cases 379 titled as Ram Niwas vs. Jai Ram @ Tej Ram. Learned counsel for respondent No. 1 has also cited a judgment of Supreme Court in 2004 (8) Supreme Court cases 488 titled as Maharwal Khewaji Trust (Regd.) vs. Baldev Dass to contend that undertaking of the kind given by the learned counsel for the petitioners may have no meaning. Reliance on behalf of respondent no. 1 has also been placed on Full Bench judgment of this Court in 1981 PLJ 204 titled as Bhartu vs. Ram Sarup. Lastly, reliance has been placed on a Division Bench judgment of this Court in AIR 1961 Punjab 528 titled as Sant Ram Nagina Ram vs. Daya Ram Nagina Ram. I have carefully considered the rival contentions. Keeping in view the Division Bench judgment of this Court in case of Bachan Singh (Supra) and the undertaking given by learned counsel for the petitioners as noticed herein above, the petitioners are prima facie entitled to raise construction over 6 kanals 17 marlas land being in their exclusive possession, subject to the condition that they have to remove the same (without claiming any compensation) at their own cost and risk, if any part of the land under construction, falls to the share of any other co-sharer including the plaintiff in the event of partition. This view is supported by the judgments cited by learned counsel for the petitioners as noticed hereinabove. In addition thereto, the share of plaintiff-respondent No.1 is just 1 kanal 13.8 marlas in total suit land measuring 13 kanals 12 marlas whereas the petitioner intend to raise construction on 6 kanals 17 marlas only. Single Bench judgement of this Court in the case of Ram Niwas (supra) relied by counsel for respondent No. 1 would not hold the field in view of Division Bench judgment of this Court in the case of Bachan Singh (Supra). Judgment in the case of Bachan Singh (Supra) did not make any difference between small and huge construction that may be raised by a co-sharer in exclusive possession of the joint land. The distinction sought to be drawn by Single Bench judgment in the case of Ram Niwas (Supra) is not made out from the judgment of Division Bench in the case of Bachan Singh (Supra). Judgment of Hon'ble Supreme Court in the case of Maharwal Khewaji Trust (Supra) does not contain facts of the case. Moreover, the said judgment has also been noted by Single Bench of this Court in the case of Surjit @ Surjit Singh Kataria (Supra). Full Bench judgment of this Court in the case of Bhartu (Supra) has no relevance to the issue being adjudicated upon in the instant revision petition. The said judgment simply laid down that alienation of specific portion of joint land by a co-sharer in exclusive possession thereof would also amount to alienation of a share of the joint land and the same would be subject to partition. In the instant case also the joint land in suit is certainly subject to partition and if any portion of the land under construction that may be raised by petitioners, falls to the share of any other co-sharer including the plaintiff in the event of partition, then the petitioners have to remove construction from that portion at their own risk and responsibility. It is also clarified that the petitioners, merely on the basis of construction that may be raised by them, would not be entitled to claim preferential right of allotment of the said portion of the suit land to them during partition. This condition would protect the interest of the plaintiff- respondent No. 1 as well. In the case of Sant Ram Nagina Ram (Supra), the co- owner who had raised the construction, claimed the joint land to be belonging to him exclusively. However, in the instant case, learned counsel for the petitioners admits that they are co-sharers in the suit land and do not claim the land to be belonging to them exclusively nor do they claim that partition of the suit land has already taken place. Consequently, judgment in the case of Sant Ram Nagina Ram (Supra) has no applicability to the facts of the instant case. For the reasons recorded hereinabove, the instant revision petition is allowed and the impugned judgment dated 9.12.2009 (Annexure P-7) passed by Additional District Judge is set aside and the order dated 14.10.2009 (Annexure P- 1) passed by learned Trial Court is restored subject to the conditions and observations made in the instant order. It is expressly made clear that nothing observed hereinabove shall be construed as an expression of opinion on the merits of the suit. (L.N.MITTAL) JUDGE 17.3.2010 preeti