High Court: Co-Owner in Exclusive Possession Cannot Be Restrained from Building on Joint Property

Kathua, J&K: The High Court of Jammu & Kashmir and Ladakh recently dismissed a petition challenging an appellate court order, reaffirming the legal principle that a co-owner in exclusive possession of a specific portion of joint property generally cannot be restrained from raising construction on that portion. The Court, exercising its supervisory jurisdiction under Article 227 of the Constitution, found no grounds to interfere with the appellate court's decision allowing construction by one co-sharer.

Case Background: A Family Property Dispute

The case originated from a suit filed by Ms. Neelam Sharma (petitioner) against her brother-in-law, Mr. Ashok Kumar (respondent 1), and others before the Munsiff, Hiranagar (trial court). Ms. Sharma sought partition of land measuring 04 kanals and 12 marlas in village Chak Bhagwana, Tehsil Hiranagar, claiming joint ownership following her husband's death.

She stated her husband had built a house on a portion of the land years ago. According to her plea, under a family arrangement, her husband allowed Mr. Kumar to fill a plinth on another part of the land, in exchange for half of a different residential house. Ms. Sharma alleged Mr. Kumar never fulfilled his side of the arrangement, forcibly occupied her house after her husband's death, and was now attempting further construction on the plinth he had filled. This led her to file the suit and seek an injunction.

Procedural History: From Status Quo to Permission for Construction

The trial court, after hearing initial arguments and receiving Mr. Kumar 's objections, issued an interim order on October 11, 2021, directing both parties to maintain the status quo regarding the suit land.

Aggrieved by the status quo order, Mr. Kumar appealed to the Additional District Judge, Kathua (appellate court). On January 18, 2023, the appellate court passed the order now impugned before the High Court. It set aside the trial court's status quo order and permitted Mr. Kumar (the appellant therein) to complete his construction on the suit land, subject to prevailing building rules.

Arguments Before the High Court

Ms. Sharma challenged the appellate court's order before the High Court, primarily arguing it was illegal, passed hastily, and effectively amounted to deciding the main partition suit prematurely.

Mr. Kumar opposed the petition, defending the appellate court's decision.

Legal Principles Applied: Rights of Co-Owners

The central legal question before the High Court was whether the appellate court erred in allowing Mr. Kumar , a co-sharer, to raise construction on the disputed joint property.

The High Court relied on established legal principles regarding co-ownership, citing its own precedent in Kuldeep Singh Vs. Sant Nirankari Mandal & Ors. (CIMA No. 501/2013). The Court reiterated the principle summarized in Kuldeep Singh :

"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."

The Court noted that while this right isn't absolute, the established position allows a co-sharer in exclusive possession to utilize their portion, including building on it.

High Court's Reasoning and Decision

Applying this principle, the High Court observed that Ms. Sharma herself admitted in her suit that the property was joint, her husband had built on one portion, and Mr. Kumar had constructed the plinth on another portion with her husband's consent.

Given these admitted facts and the settled law, the High Court found the appellate court was correct in its assessment. The High Court stated:

"...the appellate court has been alive to the said facts and consequently passed the impugned order while rightly setting aside the order of the trial court holding that the construction in question raised by the defendant/respondent 1 herein would not cause any irreparable loss to the plaintiff/ petitioner herein and would rather impinge upon the rights and interests of the defendant/respondent 1 herein."

Furthermore, the High Court emphasized the limited scope of its supervisory jurisdiction under Article 227. Citing the Supreme Court's decision in Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil (2010) 8 SCC 329, it stressed that this power is meant to be used sparingly, not merely to correct errors of law or fact, or substitute its view for that of the lower courts.

Finding no error or jurisdictional flaw in the appellate court's order, the High Court concluded that it did not warrant interference.

Final Outcome

The High Court dismissed Ms. Sharma 's petition, thereby upholding the appellate court's order which allowed Mr. Ashok Kumar to proceed with construction on the portion of the joint land where he had previously laid the plinth. The partition suit remains pending before the trial court for final adjudication on merits.