KARNAIL SINGH Vs. BABU RAM

JUDGEMENT

(1.) THE learned Additional District Judge, Ambala by his order dated May 6, 2014 has reversed the order dated January 3, 2014 passed by the learned Additional Civil Judge (Senior Division), Naraingarh and dismissed the application under Order 39 Rules 1 & 2 filed by the plaintiff, who is the petitioner before this Court in revision aggrieved by the order in appeal. The plaintiff and defendant are uncle and nephew. The disputed house is claimed to be joint property of the father of the petitioner and the defendant. They are joint owners to the extent of share. No partition has taken between the parties by metes and bounds till date. The plaintiff resides in the disputed house shown in the site plan by letters ADEFGHJ. The father of the petitioner has passed away. The petitioner called upon his uncle for his consent to partition of the house. Defendant refused to budge. The petitioner took the dispute to the trial Court and filed the civil suit for partition. He sought the relief of permanent injunction retraining the defendant from raising any type of further construction or selling, alienating, creating any type of charge upon the residential house in question. He also filed an application under Order 39 Rules 1 and 2 CPC for an ad interim injunction restraining the defendant from raising construction on his portion claiming he was building on a portion in excess of his share. The suit was contested. The defendant claimed land as his own marked EBICGF. The uncle stated that his nephew had constructed his house shown with letters AEFGHD and can concern himself with that portion possessed by him. Both owners are in possession of the respective shares in the suit premises. The application for temporary injunction was opposed. It was averred that defendant falls in the category of Below Poverty Line (BPL) and had received financial aid from the Government to re -construct his kacha house after demolishing it.

(2.) THE learned Additional Civil Judge (Senior Division), Naraingarh accepted the application and issued status quo order with respect to the suit property which order has been set aside in appeal. The petitioner has approached this Court against the order in appeal. The learned trial Court has reasoned that parties do not dispute shares in the property or the site plan showing their respective shares then without producing evidence on record it cannot be concluded as to whether the property in question is joint property of the parties or that parties are already living in their separate portions after partition. The trial Court is of opinion that the plaintiff was unnable to prove the three essential ingredients necessary for grant of adinterim injunction and to protect the plaintiff, it is imperative to maintain the status quo.

(3.) THE learned Additional District Judge, Ambala has not accepted the view of the learned trial Judge directing parties to maintain status quo. The Appellate Court has noticed that the grudge of the plaintiff is that he shall suffer irreparable loss in case the defendant raises construction over the suit property in more than his share; therefore, if the appellant is allowed to raise construction only on the portion shown yellow in colour in the site plan then by no means, the plaintiff shall suffer any irreparable loss. No doubt, each co -sharer has right in every inch of land till it is partitioned but when co -sharers are in exclusive settled possession for long he has a right to maintain and enjoy the property till it is partitioned by metes and bounds. The Appellate Court notices that the defendant/appellant has denied the suit property to be joint between the parties and the plaintiff has failed to produce any document on record to show that suit property is joint between the parties. The orders of the trial Court have been reversed as the Appellate Court has not found this a fit case to satisfy the triple test i.e. of a strong prima facie case on the merits, weighing the balance of convenience and irreparable loss that may be caused if interim injunction is refused. These ingriedents do not co -exist to warrant interference.