Civil Revision No.1028 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1028 of 2009 Date of decision:- 26.02.2009. Yashwant alias Yakun ...Petitioner Versus Ishwar Singh ...Respondent CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. Dheeraj Bali, Advocate for the petitioner. JASWANT SINGH J.(Oral) Petitioner-plaintiff Yashwant alias Yakun has filed the present petition under Article 227 of the Constitution of India for setting aside the impugned order dated 20.02.2009 (Annexure P-5) passed by learned Additional District Judge, Karnal and order dated 14.02.2009 (Annexure P- 4) passed by learned Civil Judge (Junior Division), Karnal vide which the application under Order 39 Rules 1 and 2 of CPC for seeking temporary injunction has been dismissed. The brief facts of the case are as under:- The petitioner-plaintiff as well as Gaurav and Vinod are joint owners in possession of the land measuring 17 Kanal 17 Marla and described in the plaint. It is further alleged that no partition has taken place till date and the respondents are raising construction over the Khasra No.6/2 (2 Kanal 13 Marla) without getting the same partitioned. It was stated that if defendant-respondent is not restrained then he shall suffer the injury which will not compensated in any way. It is further alleged that he has already filed an application under Section 111 of the Punjab Land Revenue Act,1887 of partition of the property in dispute before the revenue Civil Revision No.1028 of 2009 -2- Authority, which is pending before A.C. II Grade, Nissing, District Karnal. Reply was filed by respondent-defendant and he, inter alia, submitted that the land was partitioned by way of oral mutual consent between the co- sharer and as per that settlement, the land measuring 2 Kanal 13 Marla fell to the share of Vinod Kumar and as a co-sharer, who had exchanged his land with respondent by way of Civil Court decree. On the basis of the said decree, mutation No.4475 was sanctioned in his favour. It is further pleaded that Khewat No.394 comprised of 3 khasras and all the 3 Khasras are situated in different chunks. Land measuring 2 Kanal 13 Marla of Khasra No.6/2 is situated adjacent to another land of the defendant-respondent situated at Khasra No.6/1. It is further pleaded that defendant-respondent wants to instal a filling station and for that purpose, they exchanged the land with said Vinod Kumar and since then he is in continuous possession over the suit land and the present suit has been filed with malafide intention to extract money from the defendant. Both the Courts below have come to the conclusion after perusal of the revenue record of the case that Khasra No.6/1 is in exclusive possession of respondent-defendant Ishwar Singh. Further, it has been observed that there is no separate rasta for reaching Khasra No.6/2 except through a rasta from Khasra No. 6/1. In the application purported to have been filed under Section 111 of the Punjab Land Revenue Act by the petitioner-plaintiff before A.C. II Grade for partition and in para 4 thereof the petitioner-plaintiff himself has submitted that parties have partitioned the joint land at the spot but the same has not been entered in the revenue record. Annexure P-8 also reveals that tubewell connection in the name of defendant-respondent has been installed in Khasra No.6/2 and Annexure P- Civil Revision No.1028 of 2009 -3- 9 is the letter dated 10.02.2009 and Local Inspection Report is Annexure P10, which reveals that khasra Nos.6/2 and 6/1 are adjacent to each other and respondent-defendant Ishwar Singh son of Bharat Singh is in exclusive possession of khasra No.6/2. There is a report of Naib Tehsildar (Annexure P-10) and report of SDM (Annexure P-9) and report of Electricity Department (Annexure P-7) and it is apparently clear that defendant- respondent is proved to have been in exclusive possession over the khasra number under dispute and plaintiff-petitioner has failed to prove his possession over the khasra No.6/2 and in these circumstances, no prima facie case was made out in his favour. Even the balance of convenience also does not lie in his favour. Keeping in view the fact that defendant-respondent has deposited an amount of Rs.3,00,000/- for installation of oil filling station and in case the interim injunction is granted in favour of plaintiff-petitioner, then certainly the defendant-respondent will suffer an irreperable loss and injury. The learned Additional District Judge has clearly recorded while passing the impugned order dated 20.02.2009 in paragraph 53 that right to raise construction by defendant-respondent is subject to the formal partition of the property in dispute and in case any portion of the property on which the construction is raised, comes to the share of other co-sharers, then construction will have to be removed without any demur. Paragreaph 13 of the order dated 20.02.2009 (Annexure P-5) is reproduced hereasunder :- “ 13. The status of the parties is that of co-sharers and a co-sharer has a right to use and enjoy the joint property and cannot be restrained from enjoying the property by raising construction thereon. However, his right to raise Civil Revision No.1028 of 2009 -4- construction is subject to the formal partition of the property. If in partition, any portion of the property on which construction is raised falls to the share of other co- sharers, construction will have to be removed without demur. The remedy of other co-sharers is not to seek to injunction but to go for a partition. Raising of construction by a co-owner, by itself, cannot be said to cause any injury as the rights of other co-sharers are protected by making suitable adjustments at6 the time of partition. Raising of construction neither amounts to diminishing the value and utility of the property nor it amounts to prejudice to the interest of other co-owners. “ Both the learned Courts below exercised their discretion while disallowing the interim injunction in favour of plaintiff-petitioner and as such there is no ground to interfere in the discretion exercised by both the Courts below as mentioned in paragraph 13 of the order of learned Additional District Judge. However, it is made clear that right to raise construction is subject to the formal partition of the property. And if in partition any portion of the property, on which the construction is raised, falls to the share of other co-sharers, construction will have to be removed without any demur. Consequently, this petition is dismissed as there is no ground to interfere in the impugned order while exercising powers under Article 227 of the Constitution of India. February 26, 2009 (JASWANT SINGH) vj JUDGE