C.R.No.6291 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.6291 of 2008. Decided on: October 28, 2009. Bhartu .. Petitioner VERSUS Rishal Singh and others .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI PRESENT Mr.Sandeep Kotla, Advocate, for the petitioner. Ms Sharmila Sharma, Advocate, for the respondents. M.M.S. BEDI, J. (ORAL) This revision petition has been preferred by the plaintiff whose application for interim injunction had been allowed by the trial Court in his suit for permanent injunction holding that prima facie the property in suit is joint property, therefore, no co-owner can be allowed to diminish the value of the suit property by raising construction. The lower appellate Court in appeal has allowed the appeal and dismissed the application for interim injunction under Order 39 Rules 1 & 2 CPC, vide order dated 06.11.2008, observing that since the plaintiff-respondent himself has raised construction of . . . 1 C.R.No.6291 of 2008 house in Rectangle No.57, Killa No.13/1(2-0), the defendants, therefore, cannot be restrained from raising construction in Rectangle No. 57, Killa No.11(8-0), as the plaintiff and defendants are co- sharers in Khewat No.137, Khata No.215, Rectangle No.57, Killa No.11(8-0), 19/4(2-2) and 20(8-0), total measuring 18 kanals 2 marlas. Counsel for the appellant has vehemently argued that partition proceedings are pending, as such, raising of construction by the defendants-respondents will prejudice the rights of the plaintiff-petitioner as the value of the agricultural property which is co-owned by the parties will be diminished by raising of construction. On the other hand, counsel for the respondents has stated at Bar that the defendants-respondents are ready to give an undertaking before this court as well as before the trial Court to the effect that if any portion of the land in dispute on which construction is being raised falls to the share of the plaintiff at the time of partition, he will not claim any compensation of the construction raised during pendency of the suit and would surrender the same to the plaintiff. Counsel for the appellant has placed reliance upon Bachan Singh Vs. Swaran Singh, 2000(3) RCR (Civil) page 71, to contend that if the act of the co-owner in possession results in diminution in value land and utility of the property, a co-owner out of possession can seek injunction to prevent the diminution of value and utility of property. . . . 2 C.R.No.6291 of 2008 A perusal of the judgment in Bachan Singh's case (supra), indicates that the ratio of the judgment is that a co-sharer is not entitled to seek an injunction against another co-sharer who has been ini exclusive possession of the common property unless any act of person in possession of property amounts to ouster prejudicial or adverse to the interest of the co-sharer out of possession. In the present case, it is prima facie established that raising of construction by the defendant on a portion of the co-owned property would, in any manner, be subject to diminishing value and utility of the property. This Court in case Gursharan Singh Vs. Bhupinder Kaur and others, 2008(4) RCR (Civil), page 521, in a matter of injunction relying upon the judgments in Hussan Lal Vs. Krishana Devi, 1996 (1) RRR 69, (P&H) and Raj Mal Vs.Smt.Bhagati, 1988 CCC 163, has observed that a case in which the plaintiff seeking injunction against the other co-sharers after himself having raised construction of house without getting the property partitioned will not be entitled to seek interim injunction against the co-sharer to restrain him from raising construction on his share of the land so as to deprive him of the use of his share. Taking into consideration, the totality of the circumstances in the present case, I am of the opinion that once it is established that the plaintiff himself has raised construction on the co-owned land, he cannot seek interim injunction to prevent the user of the defendants co-sharers by restraining them to enjoy the property. . . . 3 C.R.No.6291 of 2008 I do not find any infirmity in the order passed by the lower appellate Court. The revision petition is dismissed. However, the defendants-respondents will furnish an undertaking before the trial Court to the effect that if any portion of the property in dispute on which construction is being raised by him would fall to the share of plaintiff in partition, he will not claim any compensation for the construction raised and shall surrender the same as such, to the plaintiff. The said exercise will be done on next date of hearing or any date fixed by the trial Court. (M.M.S.BEDI) JUDGE October 28, 2009. rka . . . 4