M.M.Kumar, J. - (1.) A short question raised in this petition filed under Article 227 of the Constitution is whether the defendantpetitioner is entitled to raise construction of their factory on the land in question on the plea that it is in exclusive possession of the suit property. A related question would also arise whether raising of such a construction amounts to ouster of the rights of other co-sharer to it adversely affects his interests who is out of possession? The aforementioned proposition is no longer res Integra because conflict of various Single Bench judgments has been resolved by a Division Bench of this Court in the case of Bachan Singh v. Swaran Singh (2000-3) 126 PLR 416. By overruling of the judgments which prohibited a party in exclusive possession to raise such a construction the Division Bench has laid down as under: "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. In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co-owner. 16. In this view of the matter, we are unable the propositions laid down by the learned Single Judge of this Court in NazarMohd, Khan v. ArshadAli Khan & Ors.(1996-1) 112PLR334. wherein his Lordship broadly stated that there is no denying the fact that a co-sharer has no right to raise construction until the land is partitioned by metes and bounds and so even when one of the co-sharers is in exclusive possession of a particular piece of land any other person can seek injunction restraining the other co-owner from raising construction. We accordingly overrule the said decision of the learned Single Judge of this Court and also the decisions in Mst. Parini alias Mano v. Mohan Singh 1982 PU 280., Om Par/cash and Ors. v. Chhaju Ham (1992-2) 102PLR75, and Daulat Ram v. Dafip Singh 1989(1) Rev LR 523."
(2.) I have prefaced the judgment by question of law and the reply thereto on account of the facts that the Division Bench furnishes a binding precedent within these jurisdiction.
(3.) Brief facts of the case may be noticed. The plaintiff-respondent instituted Civil Suit No. 351 of 2004 on 1.6.2004. He also filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'). His case in brief is that he is joint owner in possession to the extent of l/6th share along with his brothers Lakhpat Singh, Dharam Singh, Jai Bhagwan, Karam Singh and Rajpal alias, Rampal in the total land. The defendant-petittioner had purchased the share of Dharam Singh, which is 476/8212, by registered sale- deed dated 25.2.2004. Obviously, the defendant-petitioner became co-sharer in joint possession to the extent of the land purchased by it. The aforesaid land is abutting to the metalled road leading from Karnal to Kaithal and is more valuable in comparison to the other land of the co-sharers. No partition has taken place and, therefore, it is in joint ownership of all the brothers. The defendant-petitioner with ulterior motive and on account of becoming co-sharer have been trying to change the nature of the suit property by installing a factory and show-room in that land, which in fact is agricultural land.;