A co-owner cannot change the nature of the joint property to the detriment of other co-owners without partition or consent.

Tarlok Singh Chauhan, J.

The petitioners, by way of present petition, under article 227 of the Constitution of India, have prayed for the following relief:-That the impugned order dated 28.2.2012 passed by the learned Civil Judge, Senior Division, Court No. 2, Mandi, H.P. in CMA No. 13-VI/2012 (Annexure P-4) as well as order dated 2.1.2014 passed by the learned Additional District Judge (II), Mandi, H.P. in Civil Misc. Appeal No. 10 of 2012 (Annexure P-5), may very kindly be quashed and set-aside in view of the fact that the respondent on 18.9.1996 sold the land to the petitioners and handed-over the ownership and possession by executing a registered sale deed and spot map and now after lapse of 16 years, the respondent has obtained the interim injunction without filing any proceeding for partition on the ground that the suit land is in joint ownership and possession of the respondent as well as petitioners, whereas the petitioners are in exclusive possession from 18.9.1996 of the purchased land and they have raised construction only on half share of the purchased land.

2. The petitioners are the defendants. The plaintiff-respondent filed a suit for permanent prohibitory injunction. Alongwith the same, an application, under Order 39 Rules 1 & 2 CPC for grant of injunction was also filed. Admittedly the parties are co-owners. The defendants- petitioners had purchased the suit land from the plaintiff and became joint owners in possession of the suit land. The defendants were restrained by an order of injunction from raising any construction as partition had not been carried out. It is this order of injunction granted by the trial court and as affirmed by the learned lower appellate court, that is in question before this court.

3. Admittedly the parties are co-owners and it is settled that every co-owner has every right over each inch of land. The possession of one co-sharer is possession of all, and therefore, the co-sharer cannot change the nature of the suit land to the detriment of another co-owner unless the land is partitioned or can do so with the consent of other co-sharers. This view has been consistently followed in a number of judgments by this court.

4. In Nagesh Kumar versus Kewal Krishan AIR 2000 Himachal Pradesh 118, this court has held as under:-

“16. A co-sharer is entitled to claim injunction when another co-sharer threatens to exclusively appropriate joint land to himself to the detriment of other co-sharers by constructing a structure thereon.”

“18. In a cause when a co-sharer has sued for permanent prohibitory injunction restraining the other co-sharer from raising any construction over the land jointly owned by them, it is not just and proper to permit the co-sharer against when the relief of injunction has been claimed, to continue/complete on construction of a house/structure on such land.”

5. In Shiv Chand versus Manghru & Ors. 2007 (1) SLJ (H.P) 641, this court has held as follows:-

7. The view taken by the first appellate court that one of the persons in joint possession can raise construction on a portion of the joint property provided the area sought to be covered does not exceed his share, is contrary to the proposition of law. The law is very clear that a person in joint possession of immovable property cannot change the nature of the suit property unless the property is partitioned or the other persons in joint possession consent to such change in the nature of the property.”

6. In Brij Lal versus Puran chand 2011 (1) Him. L.R. 80, it has been held as under:-

“8. The partition proceedings are pending before the competent authority. Though the defendant as DW-1 has made reference about some family partition, however, he has neither given any date nor month or year when the family partition took place. He has admitted that the suit land measuring 11-12 bighas was joint of the parties. In his written statement, he has claimed not only that he was in exclusive possession, but also exclusive title to suit