Co-Sharer Cannot Be Restrained From Raising Construction Over Portion Of Joint Holding In His Exclusive Possession: JKL High Court

The observations were made by a bench comprising Justice Sanjay Dhar while hearing a plea in terms of which one of the co-sharers had challenged an order passed by Additional District Judge, permitting respondent/defendant to raise construction over the suit land subject to an undertaking that they will dismantle the construction in case the petitioner/plaintiff succeeded in the suit. The order was passed in appeal against Munsiff court's order granting injunction in favour of petitioner/plaintiff.

The petitioner/plaintiff had challenged the order allowing the respondent/defendant to raise a conditional construction on the property of dispute inter alia on the ground that the suit property is joint and is yet to be partitioned and hence the the appellate court could not have allowed the contesting defendants to raise construction.

The question that sought adjudication from the bench was as to whether a co-sharer can stop another co-sharer from raising construction on a portion of the joint property which is in exclusive possession of the said co-sharer.

While dealing with the matter in controversy the bench noted that the plaintiff and the contesting defendants are co-sharers of the suit property as they have inherited the same from a common ancestor.

In its bid to answer that bone of contention between the contesting parties the court relied on Sardari Lal Gupta vs. Siri Krishan Aggarwal, AIR 1984 wherein Punjab & Haryana High court while dealing with an issue on the same subject held,

"That only because the plaintiff is co-sharer, he cannot restrain the other co-sharer from making construction on the joint property, unless he can specify that he would suffer damage if the injunction is refused".

In order to buttress the said position the court also referred Kuldeep Singh bs. Sant Nirankari Mandal & Ors. 2013 wherein a bench of this court observed,

"It is permissible for a co-owner to raise construction on that portion of the joint holding of which he has been in exclusive possession without any objection from the other co-owners. This right of the co-owner, however, is not totally unfettered and is subject to some conditions, which need not be discussed here".

Observing that the trial court while passing a status quo order had not appreciated the fact that the respondent/defendants were in the process of raising construction on spot, which they had specifically pleaded in their written statement, the court said that passing of order of status quo against them by the trial court would have resulted in irreparable loss to them.

Upholding the order of the appellate court the bench noted that,

"The learned appellate court has rightly set aside the order of the learned trial court and while protecting the interests of the plaintiff, allowed the contesting defendants to raise construction on spot subject to furnishing an undertaking".

Accordingly, the bench did not find any illegality in the impugned order passed by the learned appellate court and therefore dismissed the petition.

Case Title: Mst Zaiba Vs Ghulam Ahmad Zargar & Ors.

Citation: 2023 LiveLaw(JKL) 5

Coram: Justice Sanjay Dhar

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