Civil Revision No.1298 of 2009 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1298 of 2009 Date of decision: 23.03.2009. Bishan Dass ...Petiitioner Versus Krishan Kumar and others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. D.S.Gurna, Advocate for the petitioner. Ms. G.S.Turka, Advocate for the respondent No.1 ***** S.D.ANAND, J. The learned Ist Appellate Court, vide order dated 18.10.2008, affirmed the order dated 14.11.2007 of the learned Trial Court vide which the plea raised by the plaintiff-petitioner for the grant of ad-interim stay was negatived. It is apparent from the plaint (a copy whereof was shown at the time of arguments before this court) that the plaintiff-petitioner claiming to be owner in possession of the house indicated as ABCD in the site plan; whereas the defendant-respondent had purchased the additional house indicated as CDEF in the site plan from Naresh Kumar who is a real brother of the plaintiff-petitioner. The further averment, in the context, is that “the possession of the said house Civil Revision No.1298 of 2009 -2- **** was delivered by Naresh Kumar to the defendant”. The grievance of the plaintiff was that his door and windows which exist towards the house purchased by the defendant-respondent would be closed and the light and air would be denied to him if the defendants- respondents is not restrained from raising further construction on the house purchased by him. The learned Trial Court and also the learned Ist Appellate Court held that there was no prima facie case in favour of the plaintiff-petitioner, that balance of convenience was also not in his side and and that no irreparable injury would be caused to him by declining of the injunction. The learned counsel for the petitioner argues that the defendant-respondent having purchased a part of the joint house (of which the plaintiff-petitioner is also a co-sharer), the former cannot be allowed to raise construction on any part of the joint house without his obtaining partition thereof. The further averment, in the context, is that the defendant-respondent being a stranger to the family of the plaintiff-petitioner (and latter's brother Naresh Kumar) cannot claim entitlement to joint possession of that house. Reliance, in support of the advocated plea, was placed upon the following underlined part of Section 44 of the Transfer of Property Act, 1882 (hereinafter referred to as “the Act”). “44. Transfer by one co-owner:- Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such Civil Revision No.1298 of 2009 -3- **** property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the tranferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.” The learned counsel for the plaintiff-petitioner is not on a firmer footing when he argues that the house purchased by defendant-respondent is a part of the joint house, of which the plaintiff-petitioner is also a co-owner. It is apparent from the following averments in the plaint itself that house purchased by the defendant- respondent is an independent house of which the plaintiff-petitioner is the owner:- “The plaintiff is owner in possession of the house as shown by letters ABCD in the site plan and the house of the defendant is shown by letters CDEF in the site plan attached. Both these houses are adjoining to each other and there is a common wall CD of these houses. ...... The defendant has purchased the house as shown by Civil Revision No.1298 of 2009 -4- **** letters CDEF from Shri Naresh Kumar the real brother of the plaintiff. The possession of the said house was delivered by Shri Naresh Kumar to the defendant.” In view of the above pleadings, the plaintiff-petitioner cannot be heard to plead the joint character of the house. In that view of things, the reliance placed by the learned counsel for the plaintiff-petitioner upon Dorab Cawasji Warden Vs. Coomi Soram Warden and others AIR 1990 Supreme Court 867 (1) is clearly misconceived. Even otherwise, the learned Ist Appellate court affirmed the finding recorded by the learned Trial Court. For want of any illegality or perversity in the matter of exercise of discretion by the learned Courts, this Court is not inclined to interfere. The petition is held to be denuded of merit and is ordered to be dismissed. However, in the peculiar facts and circumstances of the case and the interest of justice, it is ordered that the learned Trial Court shall dispose of the suit itself within six months from the next date of hearing. The acknowledgment (of a copy of this order) issued by the concerned Judicial Officer shall be forwarded to the Registry of this Court. Learned Sessions Judge shall himself maintain a tab to ensure that the case is disposed of by afore-mentioned date. March 23, 2009 (S.D.Anand) Pka Judge