Permod Kohli, J.@mdashThis revision arises out of order dated 18-10-2003 passed by the learned District Judge, Kathua reversing the order of
Munsiff, Billawar dated 20-2-2003.
2. Briefly stated the facts as emerge from the record are that the present petitioner filed a suit for permanent prohibitory injunction in the Court of
Munsiff, Billawar against the defendants from raising construction over the property comprising Survey Nos 201, 1960, 1965, 2819 situated at
village Barota, Tehsil Billawar claiming himself to be co-owner in possession with the defendants.
3. It was alleged that without partition of the property and without the consent of the plaintiff, the defendants are raising construction over the joint
land. The defendant contested the suit on the ground that the property was partitioned by oral partition and both the parties are in possession of
half of the share. The defendants further stated that one of the defendants is in the process of raising construction of residential house over 3 Marias
of land fallen to their share.
4. The trial Court initially granted ad-interim injunction maintaining status-quo, but subsequently vide order dated 20-2-2003 vacated the order
dated 20-8-2002 granting ad-interim injunction. This order came to be challenged before the learned District Judge, Kathua who vide order
impugned reversed the order of the trial Court and issued an injunction restraining the defendants from raising any construction on suit land or
causing any damage till final disposal of the suit.
5. Both the parties have argued at length before me and relied upon number of judgments.
Both the Courts below have returned a finding that the parties are joint owners. The defendant has taken a plea of oral partition. However, the
specific findings recorded by the appellate Court is that the revenue record do not suggest any partition and property continues to be reflected as
joint in the revenue record.
6. Learned District Judge has referred to the judgment of this Court reported in Abhey Singh v. Gian Singh and Ors. 1971 JKLR 326 wherein a
Single Bench of this Court held that a co-sharer has no right to built on a joint property without the consent of other co-sharer. The Court below
has also referred to another judgment reported in 1981 SLJ 487 and relying upon Karbalai Begum Vs. Mohd. Sayeed and Another, granted the
injunction.
7. Mr. Sethi, learned Counsel appearing for the petitioner/defendant has relied upon 2002 (1) RCR 803, wherein the Punjab & Haryana High
Court relying upon Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram and Others, , held as under:
7. There should be no quarrel so far this proposition of law is concerned that a co-owner must use the joint property in a husband like manner and
his use of the joint property is not in any manner inconsistent with the similar right of the other co-owners. In this case, however, the case of the
petitioners is that the property sold to them by Narinder Singh, Gurmit Singh and Harjinder Singh sons of Ajit Singh was within the limits of their
own share and further they had put the vendees from them in exclusive possession thereof. If that was so, vendees from them cannot be restrained
from enjoying that property by raising construction thereon. So this revision is allowed. Temporary injunction allowed to Smt Parkash Kaur by the
Courts below is vacated. It is however, made clear that if the defendants raise any construction they will remove that construction without any
demur if the portion purchased by them from Narinder Singh etc vide sale deed dated 13/9/1988 falls to the share of either Balwinder Akaur or
Parkash Kaur.
8. To the same effect is the judgment reported in case Bachan Singh v. Swaran Singh 2000 (3) RCR 70, wherein a Division Bench of the Punjab
& Haryana High Court held:
15. On a consideration of the judicial pronouncements on the subject, we are of the opinion that:
(i) a co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in
exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse
to the interest of co-owner out of possession.
(ii) Mere making of construction or improvement of, in the common property does not amount to ouster;
(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly
seek an injunction to prevent the diminution of the value and utility of the property.
(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an
injunction to prevent such act which is detrimental to his interest.
9. However, another reported judgment in case Dharam Singh v. Tek Chand and Ors. 1992 SCC 290 , the Punjab & Haryana High Court held
that a co-sharer cannot raise construction and change nature of land without consent of other co-sharers.
10. Though there are conflicting views as per the Punjab & Haryana High Court is concerned, however, the dominant view of this Court is that no
co-sharer has right to raise construction without the consent of other co-sharer though it may not amount to ouster. In Karbalai Begum Vs. Mohd.
Sayeed and Another, , it has been held that none of the co-sharer whether in possession or not has a right to put any portion of the joint holding to
such a use, which is detrimental to the interest of the others or may amount to change of user of the property or ouster of the other co-sharer from
that portion, without the consent of other co-sharer(s) and a suit for injunction in such a situation would not be barred.
11. In view of the above legal position, I concur the earlier opinion of this Court and up-hold the impugned judgment. This revision petition
accordingly fails and is dismissed.
