^' HIGH COURT OF CHHATTISGARH AT BjLASPUR W.P.(227) No.2610of2010 PETITIONER Defendant Ram Singh, S/o late Khush Rang Singh, aged about 70 years, R/o Tarbahar, Near Charan Aata Chakki, Bilaspur, Tahsil and District Bilaspur (CG) -Versus- RESPONDENT Plaintiff Bharat Singh, S/o late Khush Rang Singh, aged about 65 years, R/o Bhartiya Nagar, Bilaspur, Tahsil and District Bilaspur (CG) Present: Shri Ravindra Agrawal, counsel forthe petitioner. Shri Bharat Rajput, counsel for the respondent. ORDER (2-7-2010) Dhirendra Mishra, J. 1. In First Appeals preferred by the petitioner as also by the respondent herejn against the judgment and decree dated 6-8-1998 passed by 2 Additional District Judge, Bilaspur, in civil suit No.3-A/95, the High Court dismissed the appeal preferred by the petitioner and partly allowed the appeal preferred by the respondent and passed the decree that the petitioner and the respondent are entitfed for half share of the suit property and Bharat Singh is entitled for possession of his haif share. The respondent herein moved an application under Order 20 Rule 18 of the CPC for full partition and possession of his share in the suit property. During the pendency of the above application, he also moved an application under Section 151 of the CPC and prayed for restraining the defendant from undertaking construction over the suit propertv. Learned Executina Court ailowed the application and directed the judgment debtor not tb undertake any construction during execution proceedings by the impugned order (Annexure-P/1). 2. By thls petitlon, the petltioner has questioned legaiity, propriety and correctness ofthe above order and prayed for quashJng the same. 3. Shri Ravindra Agrawal, learned counsel appearing for the petitioner, submits that the petitioner is residing in the suit accommodation. He demolished the old structure of his share with a purpose to reconstruct the structure for residence. The exercise was undertaken with permission from the respondent/plaintiff, however, the respondent has subsequently resiled after the house was demolished. Since the house stands demolished as would be evident from photograph (Annexure-P/4) and the petitioner and his famlly members do not have any dwetling house, the Court below ought to have permitted the petitioner to complete the construction, particularly, when construction is being raised only in half portion ofthe disputed property. 4. Indisputably, the petitioner is in possession of the property and residing therein and, therefore, he cannot be restrained from peaceful enjoyment of his share. Ifthe^portion over which construction being raised is allotted to the share of the respondent; the possession of the same can be handed over to the respondent after demoiishing and in these circumstances, the petitioner cannot be deprived of his right of peaceful enjoyment of his share of the property. 1 ^1-^ ,?/ .€ •^ Reliance is placed in the matters of Mst. Kamroon Nisha Bibi and others Vs. Yusuf Khan and others , Rajkishore Agar^aS and etc. Vs. Basudev Behera and another and Bachan Singh Vs. Swaran Slngh . 5. On the other hand, Shri Bharat Rajput, learned counsel appearing for the respondent, submits that so long as the property is not divided, the petitioner and the respondent are jojntly owner of the entire property and the co-sharer cannot be allowed to cause prejudice to the other co-sharer by putting up a substantial construction during the pendency of execution proceeding by the co-sharer. 6. Heard learned counsel for the parties. 7. In Mst. Kamroon Nisha Bibi (Supra), opposite party obtained decree of possession of the suit property by way of restitution and the same was confirmed in revision. A subsequent suit was filed by the petitioners for eviction and in the above suit, prayer for stay of restoration or temporary injunction was made by the plaintiff. In these circumstances, it was held that the defendant has obtained enforceable decree and thus, he has a balance of convenience in his favour and if execution of the decree is stayed, he shall suffer irreparable loss and, therefore, temporary injunction, which may deprive the decree holder of the benefit of decree, cannot be granted and the petition was dismissed. 8. In Bachan Singh's case (Supra), it has been held that an order of temporary or permanent injunction cannot be claimed by co-owner of property against other co-owner who has been in exclusive possession of 1AiR19870RISSA234 2 AIR 2003 ORISSA 221 3 AIR 2001 PUNJAB AND HARYANA 112 ^K tj- r entire or part of property unless any act of other co-owner amounts to ouster prejudicial or adverse to interest of co-owner out of possession. 9. !n Rajkishore Agarwal (Supra), the petitioners filed a suit with the averment that the suit property was joint family property of their father and sons including the plaintiffs. The plaintiffs obtained compromlse decree without knowledge and consent oftheir father by manipulating the records and the same are illegal and as such, not binding upon the plaintiffs and they also prayed for temporary injunction under Order 39 Rule 1 & 2 of the CPC. The trial Court dismissed their application for temporary injunction. Miscellaneous civil appeal preferred by the plaintiffs was further dismissed by learned Additionai Dlstrict Judge. In these circumstances, civil revisions were filed by the pjaintiffs. Further dismissing the civil revisions, the Orissa High Court held thus:- "Thus, plaintiffs will not be deprived of a legitimate share if they will prove their right, title and interest over the disputed holding. For the reasons indicated above, balance of convenience does not lean in favour of the plaintiffs. In the same context the factum of irreparable loss and injury also does not support the plaintiffe in the event of construction of houses undertaken on the suit plots by the petitioners. A homestead land has a better potency and better market value. If at all plaintiffs' right over the suit holding will be decided by the Court, then there is no guarantee that the aforesaid two suit plots witl be ailotted to their share and under such circumstance the claim of irreparable loss and injury is a myth at this stage." 10.1n Rukmani and others Vs. H.N. Thimmalai Chettiar4, while considering the identical issue, the Division Bench ofthe Madras High Court held that a co-sharer cannot be allowed to cause prejudice to the other co-sharers AIR1985MADRAS283 by putting up a substantial construction during the pendency of a suit for partition filed by the co-sharers. 11 .Similar view was taken by the Kerala High Court in the matter of I. Gouri and others Vs. Dr. C.H. Ibrahim and another . Learned Single Judgs of the Kerala High Court had referred to Woodroffe, who in his Law of Injunctions (1964) has summarized the rules goveming the granting of injunctions in cases between co-owners which read thus:- "(1) The Courts wilt, in all cases be cautious of interference with the possession and enjoyment of joint property. (2) If one co-sharer uses the joint property to the greater profrts of himself, but without damage to the co-sharers, there is no cause of action. (3) In as much as each co-sharer is entitled to a portion of every part of the joint property, the Court will not, as a general rule, enforce merely strict rights and will not interpose where the user is slightly in excess of the right. (4) Where there is an infringement of a character which is sufficiently substantial to entitle to some relief, the Courts will, in the determination of the question whether an injunction should be granted, have to consider whether the injury is adequately remediable by damages and partition. Ifthat be the case, an injunction will be refused. (5) In the particular case of alleged injury through cultivation in the ordinary course by a co-sharer in -- ___ actual occupation and sole use of the property, 1 damages and not an injunction will ordinarily be f granted even though the cultivation has the effect of excluding a co-sharer, unless such exclusion is in 'AIR1980KERALA94 ^ ^-iiriNi*' denial of that co-sharer's title, in which case an injunction will be granted, such a rule being necessitated by the climate, soil and other peculiar circumstances of this country in which the lands are ordinarily cultivated in common. (6) In all other cases, an injunction may be granted where act complained of involves the exclusion of the co-sharer, or some other material and substantial injury not remediable by partjtion or damages, such as the material and injurious alteration ofthe nature and condition ofthe property to which the parties are jointly entitled." 12.1n the instant case, indisputably, a final decree has been passed in favour of the respondent and against the petitioner herein holding that the respondent is entitled for half share and possession of the suit property and an application for actual partition and possession has already been filed which is pending consideration before the trial Court. After receiving the aforesaid application, the learned trial Courthas appointed Tehsildar, Bilaspur as Commissioner for allotting half share to the respondent so that vacant possession could be delivered. Thus, facts of the present case are entirely distinguishable from the facts of the cited judgments, which have already been reproduced inthe foregoing paragraphs. 13.1n the facts and circumstances of the case, the order passed by learned Additional District Judge cannot be faulted. In the absence of any evidence that the respondent/decree holder has given his consent to the petitioner/judgment debtor to demolish the house in his possession and reconstruct the same, 1 am of the opinion that the petitioner/judgment debtor cannot be allowed to cause prejudice to the other co-sharer by ^ ^^^w^"-^ ^ r^j 1 ^. .V^^ ^-^" Barve putting up a substantial construction during the pendency of the execution proceedings in favour ofthe respondent/decree holder. 14.1n the result,! do not find any substance in this petition, the same deserves to be and is accordingly dismissed. Sd/- Dhirendra Mishra Judge