BALBIR SINGH Vs. LAMBER SINGH

JUDGEMENT

(1.) THIS is defendant's revision filed under Section 115 of the Civil Procedure Code, 1908 (for brevity, 'the Code'), challenging orders of both the Courts below granting ad interim injunction in favour of the plaintiff-respondent. Both the courts below have reached the conclusion that in the absence of any evidence showing the exclusive possession it has to be held that a co-sharer cannot raise construction or change the nature of the land without the consent of the other co-sharer. The defendant-petitioner has, therefore, been restrained from selling the land more than his share or from raising any construction over any part of the suit land or from changing the nature of the suit land till the decision of the main suit.

(2.) BRIEF facts of the case necessary for deciding the controversy raised in this petition are that the plaintiff-respondent filed a suit for permanent injunction restraining the defendant-petitioner from selling more than his share, from raising any construction over any part of the suit land and further from changing the nature of the suit land. Along with the plaint, an application under Order XXXIX Rules 1 and 2 for interim injunction was also filed which has been allowed on the basis of the version of the parties that the plaintiff-respondent is a co-sharer and owner of the joint holding which has not been partitioned. In support of the aforementioned assertion a copy of the Jamabandi for the year 1995-96 has been produced showing 22 shares of the defendant-petitioner and 14 shares of the plaintiff-respondent. So it further shows the joint possession of the parties. In other part of the land, the parties have been recorded to be the co-owners in joint possession. There is nothing on the record to show either exclusive possession of the suit land or indicating that any partition of the joint land has ever been effected by way of family partition. The learned Addl. District Judge has placed reliance on two judgments of this Court and affirmed the order of the Civil Judge by observing as under :-

(3.) MR . Kanwaljit Singh, learned counsel for the plaintiff-respondent has submitted that the Division Bench judgment in Bachan Singh's case does not go to the extent of laying down that even in cases where exclusive possession of the party has not been established, the court can permit the raising of construction. According to the learned counsel, the prima facie finding recorded by the court below is that the parties are in joint possession and no exclusive possession on the basis of family partition has been established. In such circumstances, the best course suggested by the learned counsel is to keep the property preserved in its present state. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Akshay Kumar v. Rakesh Kumar, 2000(1) Civil Court Cases 394 (P&H) and judgment in the case of Ram Niwas (supra).