Tilak Raj and others vs Ashok Kumar

This petition under Article 227 of the Constitution of India takes exception to the judgment passed by the learned Additional District Judge (II), Kangra at Dharamshala, District Kangra, H.P. (Camp at Dehra) on 05.07.2016, whereby he confirmed the order passed by the learned Civil Judge (Senior Division), Dehra, District Kangra, H.P. and restrained the petitioners/defendants from raising construction over the suit land.

The brief facts of the case are that the respondent/plaintiff filed a suit for injunction and alongwith the said suit filed a separate application under Order 39 Rule 1 and 2 CPC seeking ad-interim injunction to restrain the petitioners/defendants from changing the nature in any manner and raising any construction on the land comprised in Khata No.24 min, Khatauni No.57min, Khasra Nos. 1340 and 1341, area 0-05-90 hectares, situated in Mohal and Mauza Kanol, Tehsil Dehra, District Kangra, H.P. It is alleged that the suit land was jointly owned and possessed by the parties alongwith other co-sharers and the same was not yet legally partitioned by metes and bounds and, therefore, the petitioners/defendants had no right to change its nature and raising construction over the same till partitioned. But the petitioners/defendants started collecting construction material, marking the same and also started digging the earth on the suit land on 21.06.2014 to raise construction and thereby changed the nature of the suit land which was situated on ''Dhaliara-Dadasiba'' PWD road which is of high commercial value. Hence, the application.

The petitioners/defendants contested the application by filing reply whereby it is alleged that the parties are in separate possession on the spot pursuant to a family settlement. It is further alleged that petitioner No.1 had an old ancestral house which was in a dilapidated condition and he wanted to raise new construction which was being raised by him over Khasra No.1340 was not on the roadside. He further alleged that the house being constructed by him was over an area far less than his share.

The learned trial Court dismissed the application by concluding that since the suit land was joint between the parties and the petitioner/defendant No.1 was intending to raise construction over the same, the nature of the suit land would be changed and it would amount to thrusting a forcible partition upon the respondent/plaintiff.

Aggrieved by the order passed by the learned trial Court, the petitioners/defendants approached the learned first appellate Court, who too vide a detailed judgment dated 05.07.2016 dismissed the appeal.

Undeterred by the findings of the learned Courts below, the petitioners/defendants have approached this Court by filing the present petition wherein it is averred that the learned Courts below have erred in deciding the case as if there is a straitjacket formula to hold and conclude that in absence of partition, a co-sharer under any circumstance cannot be permitted to raise construction over the joint land or else this would be contrary to the ratio of the judgment laid down by this Court in Jatinder Kumar versus Kusum Lata Latest HLJ 2016 (1) (HP) 638.

On the other hand, Shri K.D.Sood, Senior Advocate, assisted by Shri Sanjeev Sood and Ms.Ranjana Chauhan, Advocates, would support the orders impugned herein by claiming that the same are strictly in accordance with law, more particularly, the ratio laid down in Jatinder Kumar''s case (supra). I have heard the learned counsel for the parties and gone through the material placed on records.

In order to appreciate the rival contentions of the parties, the ratio laid down in Jatinder Kumar''s case (supra) is required to be understood in its right perspective and the same has been culled out in para-46 of the judgment which reads thus:-

"46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:-

i) a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession.

ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.

(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a coowner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.

(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest.

(v) before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with.

(vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience."

Judged in light of the aforesaid exposition of law, it would be noticed though the petitioners/defendants had specifically stated other co-sharers, particularly, plaintiff/respondent had already raised construction over the lands in their respective possessions, however, during the course of arguments, it was candidly conceded that the houses so constructed are not in any manner adjacent or even adjoining the suit land but have been constructed in the village.

Insofar as Khasra No.1340 is concerned, the same adjoins ''Dhaliara-Dadasiba'' PWD road while Khasra No.1341 is adjoining Khasra No.1340 and is otherwise not very far from the main road. Even, the Local Commissioner appointed by the learned Trial Court has found the construction of the petitioners/defendants to be on more than 10 metres of the roadside portion having great commercial value.

Once, this is the admitted position, then simply to say that one is not exceeding his share in raising construction or that the land over which the construction is being raised is not adjoining to the main road would rather be too far fetched and otherwise a self-serving statement. After-all, it is not for the petitioners/defendants to judge as to whether their acts are detrimental or adversely affect the interests of other co-sharers.

If at all the petitioners/defendants are still aggrieved, they can always initiate proceedings for partition and it is no excuse to say that only because there are numerous co-owners, these proceedings would take long time and, therefore, they have not opted to resort to the same. There are ample provisions available in law to expedite the proceedings, provided the petitioners/defendants resort to the same. After-all, petitioner No.1 is a Senior Citizen and, therefore, entitled to speedy justice.

Having said so, I find no merit in this petition and accordingly the same is dismissed, leaving the parties to bear their own costs. Pending application, if also, also stands disposed of.