C. R. No. 1916 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 1916 of 2010 Date of Decision : March 22, 2010 Sukh Raj .... Petitioner Vs. Amarjit .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. R. S. Manhas, Advocate Mr. R. S. Pathania, Advocate for the petitioner. * * * L. N. MITTAL, J. (Oral) : This is revision petition by plaintiff Sukh Raj under Article 227 of the Constitution of India assailing judgment dated 26.02.2010 (Annexure P-2), passed by learned Additional District Judge (Fast Track Court), Hoshiarpur. The plaintiff filed suit alleging that he and his brothers are owners of the suit land along with other co-sharers. The suit land is being used as `Gher'. The defendant has no share in the suit land, but he illegally constructed a shop and wants to raise further construction. Along with the suit, the plaintiff moved application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (in short – CPC) seeking temporary injunction restraining the defendant from raising further construction in the suit land. C. R. No. 1916 of 2010 2 The defendant inter alia pleaded that he is co-sharer in the suit land to the extent of two marlas land, having purchased the same vide sale deeds dated 25.08.2004 and 27.09.2004. In the orders of the courts below, date of second sale deed is mentioned to be 27.09.2007, but counsel for the petitioner states that it is a clerical mistake and the correct date of the second sale deed is 27.09.2004. Defendant pleaded that after purchase of the suit property, he obtained demarcation and raised construction in his two marlas land in the year 2004, without any objection. The defendant now wants to raise further construction in the same two marlas land. Learned Additional Civil Judge (Senior Division), Dasuya (Presiding Officer of mobile court at Talwara), vide order dated 29.10.2009 (Annexure P-1), allowed the plaintiff's application for temporary injunction, restraining the defendant from raising construction in the suit land. However, first appeal preferred by defendant, against order Annexure P-1 of the trial court, has been allowed by learned Additional District Judge (Adhoc), Fast Track Court, Hoshiarpur, vide impugned judgment dated 26.02.2010 (Annexure P-2) and accordingly application moved by plaintiff- petitioner for temporary injunction has been dismissed. Feeling aggrieved, the plaintiff 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 the respondent, without getting the suit land partitioned, cannot raise construction over a part of it. The contention cannot be accepted. Firstly, the plaintiff has not come with clean hands and therefore, is not entitled to discretionary relief for temporary injunction. The plaintiff specifically alleged that defendant has no share in the suit land. However, the defendant admittedly has purchased share of two marlas land in the suit land. Learned counsel for the petitioner states that the total suit land is four marlas only. Thus, the defendant has half share in the suit land, but in spite thereof, the C. R. No. 1916 of 2010 3 plaintiff pleaded that the defendant has no share in the suit land. The plaintiff thus concealed material fact from the Court and raised a false plea. Secondly, the defendant had already raised some construction over two marlas land before the filing of the suit, as per plaintiff's own version. It would depict that the defendant is prima facie in exclusive possession of the said portion. Consequently, defendant cannot be restrained from raising further construction in the disputed portion of two marlas, of which he is prima facie in exclusive possession and on which he has already raised some construction. The plaintiff in the suit has not claimed the relief of possession or joint possession of the said portion nor claimed the relief of mandatory injunction for demolition of the construction already raised. In addition to the aforesaid, the plaintiff has also not claimed relief of partition of the total joint suit land. If the plaintiff was aggrieved by raising of construction by the defendant in part of the suit land, the plaintiff could seek relief of partition, which has, however, not been sought. It may also be noticed that as per Division Bench judgment of this Court in the case of Bachan Singh vs. Swaran Singh reported as 2000 (3) R. C. R. (Civil) 70, a co-sharer in exclusive possession of the joint land can raise construction in that part not being in excess of his share, but the same shall be subject to the right of partition of the other co-sharer(s). In view of the aforesaid, I find no merit in the instant revision petition, which is accordingly dismissed in limine. However, it is expressly made clear that nothing observed herein above shall be construed as an expression of opinion on the merits of the suit. It is also further clarified that the construction, if any raised by the defendant, shall be subject to right of partition of other co-sharers. March 22, 2010 ( L. N. MITTAL ) monika JUDGE