PREM KUMAR Vs. DHARAM SINGH

JUDGEMENT

(1.) PLAINTIFF is in revision under Article 227 of the Constitution praying for setting aside the order dated 30.10.2013(P -4) passed by the learned Civil Judge(Jr. Divn.), Gurgaon whereby the application of the petitioner under Order 39 Rules 1 & 2 CPC seeking temporary injunction and to restrain the defendants from raising construction in the suit land is dismissed; and further challenge is to the order dated 14.11.2013 (P -5) passed by the learned Additional District Judge, Gurgaon whereby miscellaneous appeal filed by the plaintiff against the order dated 30.10.2013 P -4 has also been dismissed.

(2.) PLAINTIFF has filed a suit for partition by meets and bounds and for injunction seeking to restrain the defendants from raising any construction during the pendency of the suit. It is averred that the plaintiff/petitioner is co -owner in possession of half share of the Gair Mumkin Land measuring 1 Kanal 16 marlas, fully described in the plaint. It is further averred that the defendant nos.1 to 3 are co -owners in possession to the extent of 1/6th share portion each. Plaintiffs state that they have raised construction i.e. House around 10 years back in the joint land whereas the defendants have also constructed their residential house around many years ago. Now the defendants are threatening to raise construction in excess of their shares in the vacant portion of the aforesaid joint land. The stand of the defendant nos.1 to 3 is that no new construction is being raised in any vacant area and the same is being raised by demolishing the old construction. Both the parties have annexed their site plans.

(3.) LEARNED Trial Court on the application under Order 39 Rules 1 and 2 CPC, keeping in view the respective stands and the report of the Local Commissioner appointed by the Court in para 11 observed as under: -