Sanjogita Devi vs Kewal Krishan

Surjit Singh, J.—Petitioner has filed a suit for issuance of permanent prohibitory injunction, restraining the Respondent- Defendant from raising any construction on land measuring Khasra Nos. 1071, 1073, 1074, 1075, 1076 and 1095, claiming that he is a joint owner in the property and unless the property is partitioned, Respondent-Defendant, who too is a joint owner, cannot raise any construction without his (Plaintiff''s) consent. He also filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, for issuance of temporary injunction. During the pendency of the petition, some construction was raised by the Respondent-Defendant. A Local Commissioner was appointed, who visited the spot on 24th June, 2009, that is to say 22 days after the institution of the suit. He reported that the construction to a height of 5/6 feet had been raised, without specifying khasra number on which it has been raised.

Respondent-Defendant contested the suit as also the application for temporary injunction. He pleaded that Khasra No. 1095 had been in exclusive possession of the Petitioner-Plaintiff, who sold it to him through a registered sale deed in the year 2006 and that also there had been an arrangement between the parties under which some portion of Khasra No. 1073 had been given to him (the Respondent-Defendant), while the possession of some other Khasra numbers i.e. 1071, 1074, 1075 and 1076 had been given to the Petitioner-Plaintiff.

Learned trial Court dismissed the application with the reasoning that possession of Khasra No. 1095 had been given to the Respondent-Defendant by the Petitioner-Plaintiff himself at the time of execution of the sale deed and so the Respondent-Defendant had a right to go ahead with the construction on the said Khasra number. An appeal was filed by the Petitioner-Plaintiff against the order of trial Court dismissing the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. That appeal has been dismissed with the observation that two storeys of the house had already been constructed and the Respondent-Defendant made a statement that he would not raise further construction on the vacant area, during the pendency of suit.

Petitioner-Plaintiff has challenged the orders of the two courts below. His grievance is that the Respondent-Defendant cannot be allowed to proceed with further construction on the site, which he had already covered under the construction.

I have heard the learned Counsel for the parties and gone through the record.

Though from the record, it cannot be made out as to on which particular Khasra number the construction has been carried out, the counsel for Respondent-Defendant says that it is only on Khasra No. 1095. On the other hand, Petitioner''s counsel says that a portion of the construction is on Khasra Nos. 1073, 1074, 1075, 1076 and 1071 also. Admittedly, Petitioner-Plaintiff is a joint owner to the extent of 2/3rd share in Khasra Nos. 1071, 1073, 1074, 1075 and 1076 and he has not sold any portion of these Khasra numbers to the Respondent-Defendant nor has any partition of these numbers taken place. Therefore, Respondent-Defendant cannot raise any construction on any of these numbers, until the partition takes place or the Petitioner-Plaintiff consents to the raising of construction by the Respondent-Defendant.

In view of the above stated position, the present petition is disposed of with the following orders:

During the pendency of the suit, Respondent-Defendant shall not raise any construction on Khasra Nos. 1071, 1073, 1074, 1075 and 1076, which are still joint and in case any part of the construction already raised by the Respondent-Defendant is on any of these Khasra numbers, that portion of the construction shall not be completed and the part of - 4

construction on that portion shall remain at the stage at where it is on this day.

The petition is disposed of.

CMP Nos. 859 & 997 of 2009.

In view of the disposal of the main petition, both these application also stand disposed of. Interim order dated 21.10.2009 is vacated.

CMP No. 994 of 2009.

There is also contempt petition moved by the Petitioner-Plaintiff under Order 39 Rule 2-A of the Code of Civil Procedure. That should be separated from the record of this petition and registered separately and listed in the court in due course.