IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.197 of 2008. Date of decision: 08.01.2009. Kuldeep Singh …Petitioner Versus Roshan Lal & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioner: Mr.Ajay Sharma, Advocate. For the Respondents: Mr.Bhuvnesh Sharma, Advocate. Dev Darshan Sud,J. This petition has been preferred by the plaintiff against order passed by the learned Presiding Officer, Additional District Judge, Fast Track Court, Hamirpur, H.P. in an appeal preferred by the respondents against an order passed in an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure directing the parties herein to maintain status quo qua nature, construction and possession of the suit land till final disposal of the suit. Learned trial Court in the suit instituted by the petitioner herein, had directed the parties to maintain status quo and discarded the so called permission granted by the Panchayat to the respondents to construct on the suit land. In appeal, this order has been reversed by the learned appellate Court holding therein that though the land is joint, no construction can be raised without the consent of the other co-sharer, but the defendants have been given 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. consent by the plaintiff for construction of his house which fact was also noticed by the Panchayat. The Court holds that after giving his consent, the plaintiff cannot backtrack. I have heard learned counsel for the parties. Learned counsel for the petitioner is correct when he submits that the purported compromise, on the basis of which the appellate Court has reversed the order, is the subject matter of the suit and has to be proved in accordance with law. He submits that raising of the construction would adversely affect the rights of the petitioner herein as by the time the suit concludes the defendants would claim equity in partition proceedings on the constructed portion and would also claim such construction as having been made in accordance with law. The fear or apprehension on the part of the plaintiff is not well founded. It is true that when the land is joint, no co-sharer can appropriate or take any particular part of the land for his use/construction. In this case also, the legality of the compromise is yet to be established. However, the appellate Court has taken this fact as having prima facie established the rights of the defendants. This is not a final adjudication. This petition is disposed of with the directions: (a) that any construction made by the respondents herein shall be specifically subject to the decision of the suit; (b) such construction being made by the respondents will be entirely at their risk as to consequences and shall not vest any right or equity in the respondents. In case of partition proceedings, it shall not entitle them to claim that portion of the land on which construction has been made nor shall such fact be taken into consideration while determining the allotment in partition proceedings. In other words, if this land is to be allotted to the petitioner herein, the respondents shall be free to remove the constructed portion. This petition is accordingly disposed of. There shall be no order as to costs. January 8, 2009 (Dev Darshan Sud) (aks) Judge.