IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 89 of 2011 Decided on: 14.07.2011 Surinder Kumar …Petitioner. Versus Ramesh Chand …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. B.S. Thakur, Advocate. For the respondent: Mr. Ajay Sharma, Advocate. Deepak Gupta, J. (Oral) By means of this petition, the petitioner (hereinafter referred to as 'the plaintiff') laid challenge to the order dated 16th February, 2011, whereby the learned District Judge, Hamirpur, allowed the appeal filed by the respondent (hereinafter referred to as 'the defendant') quashing the interim injunction granted by the learned trial Court. 2. Briefly stated, the facts relevant for disposal of the petition are that the plaintiff filed a suit claiming that the suit land is jointly owned by the parties. According to him, the suit 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- land is the most valuable part of the joint property and now defendant want to grab the same and raise construction thereon. 3. The defendant filed written statement and according to him, the suit land stood already partitioned, which was reflected by the fact that even in the revenue records though a common khata number was given, separate khatauni numbers were earmarked for each one of the joint holders. The learned trial Court held that since the land was joint, the plaintiff was entitled to grant of interim relief. On the other hand, the learned District Judge came to the conclusion that though the parties may be co-sharers but since in the record of rights, they are shown in exclusive possession of separate pieces of land, therefore the defendant cannot be restrained from raising construction according to his choice. 4. At this stage, one is not going to the merits of the case, but it is apparent that the land has not been partitioned as yet. However, at the same time, it is also a fact that for the last more than three decades, if not more, the defendant has been shown in exclusive possession of the khasra numbers which are the subject matter of the suit. When a share holder is in exclusive possession of some building, he should have the right to re-construct / renovate his building to make it habitable. This right cannot be cease to exist only on the ground that the partition has not taken place, because it is well established that -: 3 :- even when partition takes place, possession of the parties is normally protected. At the same time, the defendant cannot take advantage of the fact that he is in exclusive possession of a large portion of land to raise fresh construction on that portion of the land on which no construction has been carried out. 5. In view of the above discussion, order of both the Courts below is modified and the petition is disposed of with the following observations: (1). The learned trial Court shall appoint a Local Commissioner at the cost of the plaintiff, who shall go to the spot and photograph and videograph the existing construction; (2). The defendant-respondent shall be at liberty to renovate / raise construction only on the land occupied by the old construction. No fresh construction shall be allowed on any portion of the vacant land. These observations have been made only for disposal of this petition and shall have no bearing on the merits of the case. Till the Local Commissioner submits his report, no fresh construction shall be carried out. Parties through their counsel are directed to appear before the learned trial Court on 10th August, 2011, on which date the learned trial Court may appoint the Local -: 4 :- Commissioner, who shall submit his report latest by 31st August, 2011. (Deepak Gupta) Judge July 14, 2011 (rajni)