CMPMO 90 of 2008. 15.10.2008 Present: Mr. N.K.Thakur, counsel for the petitioners. Mr. Ajay Sharma, counsel for the respondents. This petition has been preferred by the defendants –petitioners herein against the order of the learned District Judge, Una reversing the order passed by the learned Civil Judge (Junior Division), Amb on an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure declining interim relief to the plaintiff-respondent. The plaintiff-respondent instituted a suit against the petitioners herein claiming a number of reliefs and also moved an application under Order 39 Rules 1 & 2 with a prayer that the petitioner-defendants be restrained from raising any construction on the land till the pendency of the suit. The learned Court, as a fact, found that the petitioners herein were in exclusive possession of the suit land and the balance of convenience was not in favour of the plaintiff nor was there any question of any irreparable loss and injury. The application was dismissed. The plaintiff appealed and the learned District Judge set aside the order and directed the parties to maintain status quo qua the nature of the suit land till the decision of the suit. The learned District Judge notices -2- that the land is recorded as jointly owned by the parties and other co sharers. He also holds that there is no dispute that the land is recorded in exclusive possession of the defendants- petitioners herein. The only question for determination was as to whether they can be allowed to raise construction on this land. The learned Court holds that this cannot be allowed though the reasons for stating so are not very clear. The Court thereafter proceeds to reverse the judgment and order of the learned trial Court by granting an order of status quo. At the outset, it must be observed that an order of status quo should not be resorted to without defining as to what “the status quo” signifies. It is a most unsatisfactory way of disposing of interlocutory applications. Having said that the parties should maintain status quo, it was the duty of the Court to have defined as to the position of construction and possession of the parties as it existed on the spot at the time of passing the order. Learned counsel for the parties have made their submissions on the respective merits of their case. Learned counsel for the petitioner claims right to construct on the -3- basis of his exclusive possession which he supports from the revenue record. Learned counsel appearing for the respondent submits that the petitioner cannot be allowed to appropriate the land for his own use unless it is partitioned. It is further pleaded that in case the petitioner succeeds in raising construction on the suit land, the plaintiff will suffer irreparable loss and injury, inasmuch as his passage would be blocked and secondly the petitioner will claim the best portion of the land for personal allotment. These submissions cannot be accepted. It is trite that mere construction on the land, if it is otherwise subject to partition proceedings, would not vest any right of equity in favour of the petitioner herein, more especially when the respondent – plaintiffs have already instituted the suit out of which these proceedings arise, asserting their right to this land and the suit is pending adjudication. It is also well settled that one co owner cannot claim the best portion of the land as his personal property. On the second aspect, irrespective of the fact whether the petitioner is owner of the land or not, no right of construction can be granted to any individual which would obstruct or block the approach to the property of another person. In the facts -4- and circumstances of the case, this petition is disposed of with the observations that any construction made by the petitioner shall be entirely at his risk as to consequences and shall not vest any right of equity in the petitioner to claim this land as his property in any partition proceedings. Needless to add that the suit land shall abide by the final decision in the suit. So far as the question of blocking the passage to the property of the respondent – plaintiff is concerned, it is clarified that should such an eventuality occur, it shall be open to the respondents to move the learned trial Court for appropriate proceedings including an order of injunction restraining and prohibiting the petitioner herein from raising further construction. For this purpose, the learned Court shall, in exercise of its powers under order 26 Rule 9 of the Code of Civil Procedure, appoint a Commissioner who shall determine the true nature of construction and in case it is found that the path to the property / house of the plaintiff is being blocked, shall have the same removed immediately. The record, if received, be sent back immediately. There shall be no order as to costs. Pending application(s) shall stand disposed of. October 15, 2008 (PC). (Dev Darshan Sud), J.