SANJOGITA DEVI Vs. KEWAL KRISHAN

JUDGEMENT

(1.) Petitioner has filed a suit for issuance of permanent prohibitory injunction, restraining the Respondent - Defendant from raising any construction on land measuring Khasra Nos. 1071, 1073, 1074, 1075, 1076 and 1095, claiming that he is a joint owner in the property and unless the property is partitioned, Respondent -Defendant, who too is a joint owner, cannot raise any construction without his (Plaintiff's) consent. He also filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, for issuance of temporary injunction. During the pendency of the petition, some construction was raised by the Respondent -Defendant. A Local Commissioner was appointed, who visited the spot on 24th June, 2009, that is to say 22 days after the institution of the suit. He reported that the construction to a height of 5/6 feet had been raised, without specifying khasra number on which it has been raised.

(2.) Respondent -Defendant contested the suit as also the application for temporary injunction. He pleaded that Khasra No. 1095 had been in exclusive possession of the Petitioner -Plaintiff, who sold it to him through a registered sale deed in the year 2006 and that also there had been an arrangement between the parties under which some portion of Khasra No. 1073 had been given to him (the Respondent -Defendant), while the possession of some other Khasra numbers i.e. 1071, 1074, 1075 and 1076 had been given to the Petitioner -Plaintiff.

(3.) Learned trial Court dismissed the application with the reasoning that possession of Khasra No. 1095 had been given to the Respondent -Defendant by the Petitioner -Plaintiff himself at the time of execution of the sale deed and so the Respondent -Defendant had a right to go ahead with the construction on the said Khasra number. An appeal was filed by the Petitioner -Plaintiff against the order of trial Court dismissing the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. That appeal has been dismissed with the observation that two storeys of the house had already been constructed and the Respondent -Defendant made a statement that he would not raise further construction on the vacant area, during the pendency of suit.