DARSHAN KUMAR AND ANOTHER Vs. ANOOP KUMAR

JUDGEMENT

(1.) THE present revision petition has been filed by the Defendants to the suit against the order dated 4.6.2010, passed by the Court of Additional Civil Judge (Senior Division), Shaheed Bhagat Singh Nagar, dismissing the application under Order 39 Rules 1 and 2 read with Section 151 Code of Civil Procedure in Civil Suit No. 853 of 2010, pending before him as well as the order dated 18.12.2010, passed in Civil Misc. Appeal by learned District Judge, Shaheed Bhagat Singh Nagar, partly allowing the same.

(2.) THE Respondent/Plaintiff instituted a suit for permanent injunction to the effect that the Petitioners/Defendants be permanently restrained from alienating any specific portion out of the joint property and further from raising any kind of construction or to allow any brick kiln owner to dig out the unobstructed portion of the property for the purpose of making or moulding the bricks. The Respondent/Plaintiff pleaded that he is a co -sharer and is in joint possession of the suit property having half share of the land measuring 1 kanals 6 marlas (i.e. 13 marlas), which was purchased by him vide registered sale deed dated 1.6.2005. It was further pleaded that the suit property, as per the revenue record, is joint and has not been partitioned between the co -sharers. It was specifically averred that the Defendants have been threatening to alienate the specific portion of the suit land and they are further in the process of raising construction and to dig the land for the purpose of making or moulding bricks. The present Petitioners/Defendants to the suit appeared and filed a reply stating that in the year 1986, the suit land was partitioned amongst the sons of Ram Parkash. Respondent/Plaintiff and Petitioners/Defendants are sons of Ram Parkash. It is stated that Defendant No. 1 to the suit was in possession of the plot measuring 1 kanal 6 marlas of land, as per the family settlement and he has constructed a residential house thereupon.

(3.) LEARNED Counsel for the Petitioners/Defendants has placed reliance upon Jai Karan Sharma v. Ram Kumar, 2009 (2) CCC 83 to contend that even if the family settlement has not been given effect to and the land has not been partitioned, a co -sharer cannot be restrained from raising any construction.