Kanwaljit Singh Ahluwalia, J. - (1.) THE present revision petition has been filed by the Defendants to the suit against the order dated 4.6.2010, passed by the Court of Additional Civil Judge (Senior Division), Shaheed Bhagat Singh Nagar, dismissing the application under Order 39 Rules 1 and 2 read with Section 151 Code of Civil Procedure in Civil Suit No. 853 of 2010, pending before him as well as the order dated 18.12.2010, passed in Civil Misc. Appeal by learned District Judge, Shaheed Bhagat Singh Nagar, partly allowing the same.
(2.) THE Respondent/Plaintiff instituted a suit for permanent injunction to the effect that the Petitioners/Defendants be permanently restrained from alienating any specific portion out of the joint property and further from raising any kind of construction or to allow any brick kiln owner to dig out the unobstructed portion of the property for the purpose of making or moulding the bricks. The Respondent/Plaintiff pleaded that he is a co -sharer and is in joint possession of the suit property having half share of the land measuring 1 kanals 6 marlas (i.e. 13 marlas), which was purchased by him vide registered sale deed dated 1.6.2005. It was further pleaded that the suit property, as per the revenue record, is joint and has not been partitioned between the co -sharers. It was specifically averred that the Defendants have been threatening to alienate the specific portion of the suit land and they are further in the process of raising construction and to dig the land for the purpose of making or moulding bricks. The present Petitioners/Defendants to the suit appeared and filed a reply stating that in the year 1986, the suit land was partitioned amongst the sons of Ram Parkash. Respondent/Plaintiff and Petitioners/Defendants are sons of Ram Parkash. It is stated that Defendant No. 1 to the suit was in possession of the plot measuring 1 kanal 6 marlas of land, as per the family settlement and he has constructed a residential house thereupon. The trial Court, vide its order dated 6.4.2010, held that there is no evidence that the Respondent/Plaintiff was in possession of the property, therefore, his prayer for ad interim injunction was declined. Aggrieved against the same, the Respondent/Plaintiff filed an appeal. The lower Appellate Court while granting the interim relief, vide its order dated 18.12.2010, has held that in the revenue record the property is shown to be in the name of Ram Parkash, father of the parties. The lower Appellate Court further held that the family settlement has not been given effect to and in pursuance thereof, the land has not been partitioned. The Court relied upon various judgments to hold that a co -sharer, in possession of the suit property cannot change the character/nature of the suit land, adverse and prejudicial to the rights of the other co -sharer who is not in possession of the same. The Court further held that by giving the land to the Contractor -Brick Kiln Owner to dig earth from the land for making or moulding bricks will damage the property and therefore, till the partition is held the Defendants may not change nature of the suit land to the detriment of the Plaintiff/Respondent. The Court further held that even if the family settlement/partition is given credence, the Defendant No. 1 is only entitled to 6 marlas of land and the remaining 7 marlas of land of Ram Parkash is still joint and the Defendants cannot change the nature of property or alienate the same till the property is partitioned amongst the co -owners. Thus, the lower Appellant Court, qua 7 marlas of land, which was in the joint name of parties to the suit and other co -sharers, restrained the Defendants from alienating the same or to change its nature by raising any construction or allowing it to be used for moulding the bricks. However, the said order has been passed during the pendency of the main suit. It has also held that the observations made shall have no bearing on the merits of the case.
(3.) LEARNED Counsel for the Petitioners/Defendants has placed reliance upon Jai Karan Sharma v. Ram Kumar, 2009 (2) CCC 83 to contend that even if the family settlement has not been given effect to and the land has not been partitioned, a co -sharer cannot be restrained from raising any construction.;