VINOD K.SHARMA, J. - (1.) THE present revision petition has been filed against the order passed by the learned Addl. District Judge, Ambala vide which order passed by the learned trial Court dismissing an application of the plaintiff-appellant under Order 39 Rules 1 & 2 read with Section 151 CPC, was affirmed.
(2.) I do not deem it necessary to go into the findings of the learned Courts below as the case deserves to be remanded back to the learned lower appellate Court to decide the appeal on merit by permitting the parties to raise their respective pleas. The learned lower appellate Court denied the injunction by observing as under :- "Admittedly, no legal partition between the parties in respect of joint land has taken place till date. Meaning thereby, the parties are co-sharers in the suit property. The sole controversy before this court is as to whether a co- sharer can seek the relief of injunction over the joint property or not. From the perusal of lower court file, it is seen that the plaintiff has already constructed his residential house and he has been enjoying the fruits of the joint property. From the site plan placed on record by the defendants, it is seen that they are in exclusive possession over the suit property and building material was lying on the spot. The defendants have also given the undertaking before the learned trial Court that they may be permitted to raise construction at their own risk and cost, and if the suit property falls in to the share of plaintiff, in that situation, they would not claim any compensation from the plaintiff. Hon'ble Andhra Pradesh High Court in Karnakadhara Construction's case (supra) has held that where the superstructure already raised, temporary injunction restraining the defendant from raising construction cannot be granted and instead of granting injunction, defendant was directed to furnish an undertaking that in the event suit is decreed, he would remove construction at his own risk and cost. Our Hon'ble High Court in Tarsem Singh's case (supra) has held that a co-sharer or a vendee from him cannot be restrained from enjoying property of his share by raising construction. This right, however, shall remain subject to partition. In a recent judgment, our Hon'ble High Court in M/s. DCM Shriram Consolidated Ltd. v. Jai Singh's case (supra) has held that a co-sharer (defendant) cannot be restrained from raising construction. It was further held that a co-sharer in exclusive possession for sufficient long time can raise construction and the question of prohibiting to raise construction by the defendant is dependent singularly on the prima facie finding of fact whether there is mutual partition between the co-sharers so as to conclude that everyone is in possession of their own share for a pretty long time. This being so, learned trial Court was perfectly justified in holding that no prima facie case is made out in favour of the plaintiff and as such it cannot be said that the balance of convenience tilts in his favour." The learned counsel for the petitioner contends that this order cannot be sustained as it is contrary to the law laid down by the Hon'ble Supreme Court in the case of Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass, 2004(4) RCR(Civil) 760 : 2005(1) Punjab Law Report 399, wherein it has been held that :- "9. Be that as it may, Mr. Sachhar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also included alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extra-ordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial Court is restored."
(3.) MR . O.P. Gupta, learned counsel appearing on behalf of the respondents, however, submits that the learned Court below are wrong in recording a finding that petitioner was co-owner of the property, whereas as a matter of fact, property in dispute is exclusively owned by the respondents. In view of the stand taken by the learned counsel for the parties and also keeping in view the law laid down by the Hon'ble Supreme Court in the case of Matharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass (supra) the impugned order cannot be sustained. Accordingly, this revision is allowed, the impugned order is set aside and the case is remanded back to the learned appellate Court to decide the appeal on merits by applying the settled principle for grant of injunction. Parties through their counsel are directed to appear before the learned lower appellate Court on 30.8.2007. Petition allowed.;