R.S.A. No. 1767 of 2010 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 1767 of 2010 (O&M) Date of Decision: March 29, 2011 Gurmeet Singh and another …..Appellants Vs. Gurmej Singh …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. G.S. Nagra, Advocate for the appellants. Mr.M.K. Bhatnagar, Advocate for the respondent. -.- M.M.S. BEDI, J. (ORAL) The suit of the plaintiff- appellants for permanent injunction to restrain the defendant from raising any construction on 1 kanal 9 marlas of land in property mentioned in heading of the plaint was decreed by the trial Court. The plaintiffs had claimed their rights on the basis of a sale deed executed by Khazan Singh who sold his share to plaintiff- appellant No.1 R.S.A. No. 1767 of 2010 (O&M) [2] and the sale deed executed by sons of Durgo who sold 3 marla of land to plaintiff- appellant No.1. The defendant- respondent being purchaser from the other co-sharers and mutation having been entered in their favour, the trial Court restrained the defendant- respondent from raising any construction in area more than his share till partition. It was also held by the trial Court that in case any construction is raised in any portion that will be at the risk and responsibility of the defendant- respondent. The lower Appellate Court has set aside the judgment of the trial Court and dismissed the suit of the plaintiff- appellants with a direction that construction, if any raised by the defendant-respondent shall be at his own risk and responsibility and shall be subject to partition and would be liable to be removed without any right having been created in the said construction. Counsel for the plaintiff- appellants has vehemently contended that the plaintiff- appellants being co-sharer in the property in dispute has got a right to restrain the defendant- respondent from raising any construction. It has been submitted that the partition proceedings are still pending. Counsel for the appellants has also contended that the land in question has already been partitioned and the matter is pending before the Collector and that the respondent is raising construction in the portion which has fallen to the share of the plaintiffs and mode of partition is sub- judice before the revenue authorities. I have heard counsel for the parties and gone through the judgment passed by the Courts below. It has been found as a fact by the lower Appellate Court that the defendant- respondent had purchased 14 ½ R.S.A. No. 1767 of 2010 (O&M) [3] marlas of land from Inder Singh, Bhan Singh and Bachni and that he had purchased 15 marlas of land from co-sharer Lakhbir Singh. The plea of the plaintiff- appellants that Lakhbir Singh has sold more than his share to the defendant- respondent has been disbelieved by the Courts below. It had been observed by the lower Appellate Court that the plaintiff- appellant No.1 has mischievously filed copy of the jamabandi Ex.P1, pertaining to Khasra No. 17//19/3/2 alone whereas the entire joint khata of the defendant indicates that Lakhbir Singh is owner of the land measuring 3 kanals 13 marlas and he had sold only 15 marlas of the land to the defendant. On appreciation of evidence, lower Appellate Court has arrived at a conclusion that the entire revenue record pertaining to joint khata of the parties i.e. jamabandi for the year 1990-91 (Ex.D2), copy of khasra girdawari from 1996 to 1999 (Ex.D4) and copy of khasra girdawari from the year 2006 to 2008 (Ex.D6) proved that the defendant is in exclusive possession of khasra No. 17//19/3/2 measuring 1 kanal 9 marlas. In view of the above said finding on the basis of the revenue record, the defendant- respondent has been held to be in exclusive possession of the said land as co-sharer having a right to raise construction. Simultaneously, the lower Appellate Court has safeguarded the rights of the plaintiff- appellants holding that the construction, if any raised by the defendant- respondent will be subject to the partition. In view of the above circumstances, this Court is of the considered opinion that co-sharer held to be in exclusive possession of a R.S.A. No. 1767 of 2010 (O&M) [4] particular portion of property is entitled to raise construction which is always subject to the partition. No ground is made out for interference. Dismissed. The judgment passed by the lower Appellate Court will not be deemed to authorize the defendant- respondent to raise construction beyond the extent of share owned and possessed by the defendant- respondent. March 29, 2011 (M.M.S.BEDI) sanjay JUDGE