Civil Rev. 3553 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT, CHANDIGARH Civil Rev. 3553 of 2008 Date of decision: 17.7.2009 Rohtash Petitioner vs Datta Ram and another Respondent Present Mr. Sanjay Mittal, Advocate Mr.Mukesh Yadv, Advocate Mr. Sumeet Goel, Advocate M.M.S.BEDI,J. Defendant-petitioner has preferred this revision petition under Article 227 of the Constitution of India challenging order dated 20.3.2008 passed the learned Civil Judge (Jr.D.), Narnaul and order dated 22.4.2008 passed by the learned Additional Sessions Judge, Narnaul allowing the application under Order 39 Rules 1 and 2 read with Section 151 CPC restraining the defendant- petitioner from making any construction over any specific portion of the suit property, which is admittedly co-owned by plaintiff-respondent and defendant-petitioner without getting the same partitioned by metes and bounds. As per the pleadings of the plaintiff- respondent, the plaintiff-respondent and the defendant-petitioner are in joint possession of the property, comprised in khewat No.3, Killa Khatoni No.11, min mustid and kila nos. 12/11 (1-7) 12(7-7), total measuring 8 kanal 14 mrlas in village Dhanota, Tehsil Narnaul vide jamabandi for the Civil Rev. 3553 of 2008 2 year 1997-98. The plaintiff has claimed that the property was never partitioned, as such both the parties are joint owners and in joint possession. The petitioner-defendant No.1 in collusion with defendant- respondent No.2 wants to raise a tower on a specific portion of the property, which is adjacent to the main road without getting the same partitioned, as such he be restrained from raising any construction on any specific portion of the property without the same being partitioned. An application for interim injunction was also filed. Defendant No.1- petitioner claimed that the property has actually been partitioned by a family settlement about 25-30 years ago and the defendant- petitioner is in possession of killa nos. 11 and 12, as such he cannot be restrained from using the said portion in his actual physical possession. The plaintiff- respondent relied upon the jamabandi for the year 2002-2003 wherein the parties have been shown to be in joint possession of khewat No.3, whereas the petitioner -defendant has relied upon the Girdawaris from the years 2003 to 2007 wherein possession of the petitioner has been shown in khasra nos.13/11 and 12. The main plea of the defendant- petitioner is that he had filed a suit regarding the same property, which was decided by the trial court on 29.5.2002 and plaintiff- respondent has admitted the possession of the petitioner over the suit land. It has been admitted that the partition proceedings are pending between the parties before Assistant Collector Ist Grade. The learned Civil Judge (Jr.D.) Narnaul allowed the application for interim injunction on account of the weakness of the case of the defendant that the factum of oral family settlement is not established from the revenue record, as such the defendant- petitioner was restrained from raising any Civil Rev. 3553 of 2008 3 construction over any specific portion of the property without partition of the suit land by metes and bounds. Similar view has been taken by the appellate court while dismissing the appeal of the petitioner against the relief of interim injunction granted to the plaintiff-respondent. Learned counsel for the petitioner has submitted that even if it is presumed that the family partition has not been established but the possession of the defendant- petitioner stands admitted by the plaintiff- respondent in an earlier suit filed by the petitioner. Attention of this court has been drawn to the copy of the plaint in a case titled Rohtash vs Ram Sarup and ohters, in which the petitioner is plaintiff but Datta Ram plaintiff is defendant No.14. Rohtash had filed a suit for injunction restraining the defendants in the said case from cultivating the suit land in khewat No.3 killa khatoni no.11, min mustid and kila nos. 13/11 (1-7) 12(7-7), total measuring 8 kanal 14 marla, in which the present petitioner had pleaded that he is in possession of the suit land in khatoni no.11 and that he had grown mustard crop in the said land and on the basis of the family settlement, the parties are in possession of their respective shares. It is quite interesting to note that in the written statement filed on behalf of the defendants, including the plaintiff it has been admitted that Rohtash, the present petitioner, is in actual physical possession of the property in dispute. The said admission seems to have been ignored by both the courts below. The photographs of the property in dispute have been placed on record, which indicate that the property, which is admittedly co- owned by both the parties is a vacant land, on which material for raising tower has been gathered and construction to some extent has already been raised. Prima facie, the possession of the petitioner-defendant has Civil Rev. 3553 of 2008 4 been admitted. A co-sharer in actual physical possession of the property is entitled to protect the possession till the partition proceedings are completed. In the present case, the partition proceedings appear to have been initiated by the plaintiff-respondent as the property in dispute is shown to be in joint possession. The property in dispute measuring 8 kanal 14 marla , forming part of a big chunk of land, is shown to be joint ownership and the actual physical possession of the said property appears to have been admitted by the plaintiff in an earlier suit. An admission made by a party in pleadings binds him. The admission of the plaintiff- respondent in his earlier suit for injunction prima facie indicates that though the land has not been partitioned but the same does not bear any construction. The defendant- petitioner is interested in raising a tower on the specific khasra number by giving the same on rent to Airtel. In case a co-sharer is not permitted to enjoy the property in his actual physical possession, the same will be contrary to all cannons of justice. In view of the above circumstances, the petition is allowed and the impugned orders passed by the courts below restraining the petitioner from raising any construction (tower) on specific khasra numbers, mentioned in the heading of the plaint, are set aside. However, it is made clear that raising of construction will not affect the rights of the parties in the partition proceedings. July 17 ,2009 ( M.M.S.BEDI ) TSM JUDGE