SIRI KISHAN Vs. DHARAMPAL

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution of India prays for setting aside the order dated 24.2.2004 passed by the District Judge, Gurgaon dismissing the appeal of the plaintiff-petitioner in which order dated 20.11.2003 of the Civil Judge (Jr. Division) Gurgaon was challenged. The Civil Judge has dismissed the application of the plaintiff-petitioner filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (for brevity 'the Code') holding that the parties to the suit are co-owners. In the written statement the stand taken by the defendant-respondents is that partition proceedings are pending between the parties and they are in exclusive possession of the suit property. It is further asserted that mandi and dharamshala have already been constructed over the suit land. It is in these circumstances that the Courts below have found that the plaintiff has failed to establish his exclusive possession nor he has stated that defendant-respondents are not in exclusive possession of the suit property. Another ground for declining the equitable relief is that the plaintiff-petitioner did not mention the pendency of the other suit filed by him in respect of the land comprised in khasra No. 21/2 Rectangle No. 68.

(2.) Shri Sudhir Aggarwal, learned counsel has argued that the Court is under an obligation to grant injunction in favour of a co-sharer against another co-sharer for protection to the extent of his share. According to the learned counsel failure to protect the possession of co-sharer and allowing construction to be raised by the other co-sharer would result into great prejudice at the time when the partition has taken place and the property is to be shared amongst the co-sharers. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Ram Pal v. Zile Singh, 2003(1) R.C.R. (Civil) 459.

(3.) After hearing the learned counsel and perusing the impugned order passed by the Courts below, I am of the considered view that this petition is liable to be dismissed because a Division Bench of this Court in the case of Bachan Singh v. Swaran Singh, 2000(3) R.C.R. 70 has taken the view that co-owner who has been in exclusive possession of common property shall be permitted to enjoy his exclusive possession and even interim direction can be issued in favour of such a person as long as any of act of any such person in possession of the property does not amount to ouster. It has further been held that mere making of construction in the common property does not amount to ouster. After detailed examination of various judgment, the following four principles have been laid by the Division Bench:-