RISHAL SINGH Vs. BHAGWAN

JUDGEMENT

(1.) THE defendants-appellants are aggrieved against the judgment & decree dated 13.12.2002 passed by the learned District Judge, Jind, whereby the suit for permanent injunction restraining, the appellants from raising any kind of construction on rectangle No. 239/2 on land measuring 13 marlas was decreed, in appeal.

(2.) THE plaintiffs have sought the decree for permanent injunction on the pleadings that Ghisu, great grandfather of the plaintiffs was recorded co- owner to the extent of 65/577 share in the land in dispute and that after the death Munga, the plaintiffs are in possession of the suit land as co-sharers. The defendants, the present appellants claim to be in possession of the suit land on the basis of sale deed dated 6.1.1983 from another co-sharer in the suit land. The plaintiffs sought injunction on the ground that the defendants are threatening to raise construction over rectangle No. 239. The grievance was in respect of construction raised in rectangle No. 237(1-6) which is not permissible as the land is not partitioned. The plaintiff claimed decree of mandatory injunction to demolish construction raised over khasra No. 237. The suit in this respect was dismissed.

(3.) THOUGH the judgment in Om Parkash case (supra) has been overruled by the Division Bench of this Court but the defendants-appellants cannot be permitted to raise construction over a portion so as to deprive the other co-sharers of use of the joint property. By raising construction, the defendants cannot affect the rights of the plaintiffs to claim exclusive possession over the suit property. In fact, the judgment of the Division Bench in Bachan Singh's case (supra) is only to the effect that mere making of construction or improvement in the common property does not amount to ouster. But in the present case, any construction raised by the defendants on a portion of the suit land without getting the land partitioned is likely to affect the rights of the plaintiffs. Therefore, the First Appellate Court has rightly restrained the defendants from raising construction. The rights of the co-sharers are required to be protected.