Jage Ram and Others vs Amar Singh and Others

Sat Pal, J.—This petition has been preferred against the order dated 6.3.1997 passed by District Judge, Bhiwani. By this order, the learned District Judge has set aside the order dated 2.9.1996 passed by the learned trial Court and has allowed the application filed by the plaintiff/respondent under Order 39 Rules 1 and 2 C.P.C. and has restrained the defendants from raising any construction over any portion of the suit property without getting the suit property partitioned.

Briefly stated the facts of the case are that the plaintiff/respondent and the defendants/petitioners are joint owner in possession of the suit land measuring 85 Bighas and 11 Biswas as per Khewat No. 16, Khatoni No. 43, 44 in terms of jamabandi for the year 1989-90. The plaintiff/respondent filed a suit for injunction against the petitioners/defendants. It was inter-alia alleged in the suit that the plaintiff and defendants were co-sharer in the suit land and though the suit land had not so far been partitioned, the defendants wanted to raise construction on the said land forcibly without getting the suit land partitioned. Alongwith the plaint, the plaintiff also filed an application under Order 39, Rules 1 and 2 read with Section 151 CPC. The aforesaid application was dismissed by the learned trial Court vide order dated 2.9.1996. The learned trial Court observed that the defendants wanted to raise construction on the old Gher which had been constructed by them about 20 years back and they would suffer irreparable loss if they are restrained from raising construction on the old Gher. Aggrieved by the aforesaid order dated 2.9.1996, the plaintiff filed an appeal before the District Judge, Bhiwani who vide his order dated 6.3.1997 has accepted the appeal of the plaintiff and has set aside the order dated 2.9.1996 passed by the learned trial Court as stated herein above.

Mr. Yadav, the learned counsel appearing on behalf of the petitioners submitted that the learned trial Court had given valid reasons while rejecting the application filed by the plaintiff/respondent under Order 39 Rules 1 and 2 CPC. he submitted that it was clearly stated in the order passed by the learned trial Court that the defendants were enjoying the property in their possession and they wanted to raise construction on the old Gher which had been constructed by the defendants with the consent of the plaintiff about 20 years back. He submitted that the learned District Judge had not dealt with the aforesaid observations and had allowed the appeal only on the ground that since the plaintiff and the defendants were joint owners in possession of the suit land, and the partition having not taken place, the defendants could not be allowed to make construction over any portion of the suit property. The learned counsel contended that a co-sharer had full right to enjoy use and fruits of property in case the property was under his exclusive possession and was to the extent of his own share. He, therefore, submitted that the impugned order passed by the learned District Judge should be set aside. In support of his submission, the learned counsel placed reliance on two decisions of this Court reported in Satish Chander Sethi Vs. Chuni Lal Shyam Sunder, and Maman Chand Vs. Smt. Kamla, .

Mr. Saini, the learned counsel appearing on behalf of respondent No. 1, however, submitted that there was no illegality in the well reasoned order passed by the learned District Judge. He submitted that it is an admitted fact that the suit property was still joint between the parties and since the parlition had not taken place between the parties so far, the defendants/petitioners could not be allowed to make construction over any portion of the suit properly. In support of his submission, the learned counsel placed reliance on two decisions of this Court in Nazar Mohd. Khan Vs. Arshad Ali Khan and Others, and Om Prakash and others Vs. Chhaju Ram, .

I have given my thoughtful considerable to the submission made by the learned counsel for the parties and have perused the impugned orders passed by the Courts below. It is an admitted fact that the plaintiff/respondent No. 1 and the defendants/petitioners are joint owners in possession of the suit property measuring 85 Bigha and 11 Biswas. The case of the defendants is that out of this land they had raised construction over the land measuring 364 sq. yards with the consent of the plaintiff about 20 years back and they were exclusively in possession over the said portion of the (and. It was stated by the defendants that they made two rooms, two chhapars and they were using it peacefully and due to rainy season it had fallen down and the defendants were making construction over this earlier chhapar etc. within Gher as old walls were still in existence. Keeping in view the aforesaid averments of the defendants, the learned trial Court came to the conclusion that the plaintiff had no prima facie case and the defendants would suffer irreparable loss if they are restrained from raising construction on the old Gher. I do not find any infirmity in the abovesaid conclusion of the learned trial Court.

In the case of Bhartu v. Ramsarup 1981 P.L.J. 204 a Full Bench of this Court held that when a co-sharer is in possession exclusively of some portion of the joint holding, he is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned. It was also observed that where a co-owner is in possession of the separate parcels under an arrangement consented by the other co-owners it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition. From the order passed by the learned trial Court, I find that the defendants had clearly stated that with the consent of the plaintiff they had raised construction over the land measuring 364 sq. yards about 20 years back and since due to the rainy season, the said construction had fallen down, they wanted to make construction over the same piece of land and even the old walls were still in existence. In view of these facts, 1 am of the opinion that there was no infirmity or illegality in the order dated 2.9.1996 passed by the learned trial Court. The learned lower Appellate Court has not taken into consideration the averments made by the defendants in their written statement which have been discussed herein above, and set aside the order dated 2.9.1996 passed by the learned trial court only on the ground that since the parties were joint owner in possession and the partition had not taken place, the defendants could not be allowed to raise construction over any portion of the suit land. It view of the law laid down by the Full Bench in the case of Bhartu (supra) the decision of this Court in the case of Om Parkash (supra) shall not be of any assistance to the respondents. As regards the case of Nazar Mohammad Khan (supra) it may be stated that in that case the decision of Full Bench in the case of Bhartu has not been noticed.

In view of the above discussion, I am of the opinion that the impugned order dated 6.3.1997 passed by the learned District Judge can not be sustained. Accordingly the petition is allowed and the said order is set aside. Consequently the application filed by the plaintiff/respondent No. 1 under Order 39, Rules 1 and 2 before the learned trial court stands dismissed.