VINOD K.SHARMA,J - (1.) THIS revision petition under Article 227 of the Constitution of India has been directed against order dated 15.12.2006 passed by the learned Additional Civil Judge (Senior Division), Phillaur dismissing an application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure and order dated 16.7.2008 passed by the learned Additional District Judge, Jalandhar vide which the appeal filed by the petitioner-plaintiff has been ordered to be dismissed.
(2.) THE petitioner-plaintiff has filed a suit for partition on the basis of entry in jamabandi showing that the petitioner and the defendants are co- sharers of the property in dispute. The defendants are said to have purchased the said property by way of registered sale deed and possession of the property was handed over to respondents Nos. 8 and 9. After they were put in possession of the property in pursuance to purchase, they have raised construction on the said property. After the possession taken, when the defendants tried to raise construction, the petitioner-plaintiff filed the present case. In the written statement, specific plea was taken that the plaintiff has already raised construction on the joint property and that factum was not disputed by the plaintiff by filing a rejoinder. The learned Lower Appellate Court in view of the facts and circumstances brought on record, passed the following order :- "As per revenue record placed on the file, the parties are co-sharer in joint possession of the property and as per the written statement filed by defendants Nos. 2 to 9, defendant No. 2 himself and as attorney of defendants/respondents Nos. 3, 4, 6 and 7 sold land measuring 5 marlas by way of sale deed dated 31.5.2004 for a sum of Rs. 50000/- to defendants Nos. 8 and 9 and delivered possession of Khasra No. 27/25/2 (0-12). Similarly, defendant No. 5 also sold land measuring 1 marla out of the suit land to defendants Nos. 8 and 9 vide registered sale deed dated 28.6.2004 for a consideration of Rs. 10000/- and delivered possession of specific portion of the same Khasra Number again shown in green colour in the site plan. It was pleaded in the written statement that the plaintiffs/appellants himself have raised construction on the portion shown red in the site plan filed by them with the written statement. In the rejoinder filed by plaintiffs/appellants to the written statement filed by defendants Nos. 2 to 9 in preliminary objection (a) they have no where denied that they have not raised construction of the houses in the said Khasra number. It is settled law that when a co-sharer himself raises construction on over the joint property without getting it partitioned, the other party cannot be restrained from raising the construction. In this context I am fortified by the pronouncements in case titled as Hussan Lal v. Krishna Devi, 1996(1) RRR 69 (P&H) and in case Raj Mal v. Smt. Bhagati and others, 1988 CCC 163 in which it has been laid down that the plaintiff seeking injunction against other co-sharers after himself raising construction of the house without getting the property partitioned, the application is not maintainable. 10. The defendants/respondents have placed on record site plan alongwith the written statement showing the construction raised by the plaintiffs/appellants in the joint property and no counter site plain has been filed by the plaintiff/appellant. Moreover as per copy of the sale deeds placed on the record, the defendants/respondents Nos. 8 and 9 were delivered possession and they cannot be denied fruits of the sale deeds by restraining them from raising construction over the property which they have purchased by way of registered sale deeds from co-sharers. 11. It is settled law that the order passed on the application under Order 39 Rules 1 and 2 read with Section 151 CPC is discretionary order and it cannot be interfered unless and until there is any illegality committed by the learned lower Court, but the impugned order is legal and valid and in accordance with law which do not call for any interference and is upheld." Learned counsel for the petitioner contends that the learned Courts below have failed to notice that injunction could not be granted on mere statement that in case of success, the construction would stand demolished. Learned counsel for the petitioner placed reliance upon a judgment of Hon'ble the Supreme Court in Maharwal Khewaji Trust (Regd.) v. Baldev Dass, 2004(4) RCR(Civil) 760. However, on consideration of the matter, it may be noticed that the said authority has no application to the facts of the present case. Hon'ble the Supreme Court in the said case was considering a case whether an injunction can be granted merely on the statement made by a party that they would be bound by the final decision of the case and would agree to demolition of the construction raised by them. Hon'ble the Supreme Court has held that for the purpose of granting injunction the case has to be decided on merits and not on the basis of statement to be made.
(3.) AS observed above, in the present case, the learned Courts below have noticed the fact that once the petitioner has himself raised the construction on the joint property, there is no equity in his favour to challenge the construction to be raised by other co-owner who has been given exclusive possession under a sale deed. The order passed does not suffer from any illegality. No interference is called for. Dismissed. Petition dismissed.;