Mere Assertion That Property Is Undivided Doesn't Restrict Co-Sharer From Making Construction On Their Portion: J&K High Court

A bench of Justice Puneet Gupta maintained that mere raising of construction by one co-sharer in the property does not mean that the other co-sharer will lose his interest in the same because of the aforesaid fact if the property where the construction has been raised on partition otherwise falls in his share.

The case originated with Petitioner Vijay Singh filing a suit in the trial court against Surjit Singh and others. Singh claimed that they jointly owned a piece of land in Samba district, which was yet to be partitioned. He argued that the defendants were constructing on the land and this would change its nature, causing him harm when the land is eventually divided.

The defendants contested this claim. They argued that an agreement dividing the property already existed and Singh was in possession of his share. They also presented a report by the Tehsildar acknowledging an oral partition.

The trial court, considering that the property awaited partition issued a status quo order restraining any construction activity. The defendants challenged this order before the appellate court, which modified it and allowed them to construct on the land. Dissatisfied with the appellate court's order the petitioner filed the instant petition before the High Court.

Justice Puneet Gupta, while acknowledging that every co-sharer has the right to enjoy the entire undivided property, observed that this right shouldn't come at the detriment of others.

“Every co-sharer has right in the property till the same is partitioned and can enjoy every inch of the same also. Where the parties are in settled possession of the property, they can enjoy the same but not to the detriment of the other co-sharers. The co-sharer can also sell his share in the property and hand over the possession to the purchaser though the purchaser cannot claim that he is entitled to a certain specific piece of property as his entitlement to enjoy the property will depend upon the partition as and when it takes place”, the bench recorded.

The bench further clarified that construction by one co-sharer doesn't affect another's interest in the land, especially if the constructed portion falls under the latter's share during partition.

Justice Gupta remarked, "Mere assertion in the suit that the property is un-partitioned and therefore the defendant cannot raise construction in any portion of the land is without any basis. Mere raising of construction by one co-sharer in the property does not mean that the other co-sharer will lose his interest in the same because of the aforesaid fact if the property where the construction has been raised on partition otherwise falls in his share."

In view of the said considerations, the court upheld the appellate court's decision to allow the defendants to construct on their portion of the land, with the caveat that no construction be made beyond their possession and that no portion of the land be disposed of during the pendency of the suit.

Case Title: Vijay Singh Vs Surjit Singh

Citation: 2024 LiveLaw (JKL) 57

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