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2018 Supreme(HP) 1122
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, J.
Pratap Chand - Appellant
Versus
Milap Chand - Respondent
Civil Miscellaneous Petition (M) No. 33 of 2016
Decided On : 02-01-2018
Surinder Saklani, Advocates for the appearing parties.
Co-owners cannot object to construction by another co-owner unless it prejudicially affects their interest or diminishes the value/utility of the property.
Headnote:
Co-ownership - Construction Rights - Summary: The court discussed the rights and liabilities of co-owners in relation to raising construction on common property. It emphasized that a co-owner cannot object to construction by another co-owner unless it prejudicially affects their interest or diminishes the value/utility of the property. The court held that the petitioner, having raised construction on the joint land, cannot object to the respondent's construction, but clarified that the respondent would have no equity claim at the time of partition.
Fact of the Case:
The petitioner, a co-sharer, objected to the construction raised by the respondent on joint land, despite having previously constructed rooms on the same land.
Finding of the Court:
The court found that the petitioner cannot object to the respondent's construction, as the construction rights of co-owners are subject to certain conditions and limitations.
Issues: The main issue was whether the petitioner could object to the respondent's construction on joint land, considering the rights and liabilities of co-owners in relation to construction.
Ratio Decidendi: The court held that a co-owner cannot object to construction by another co-owner unless it prejudicially affects their interest or diminishes the value/utility of the property.
Final Decision: The petition was disposed of in favor of the respondent, with the clarification that the construction would be at the respondent's risk and peril, and they would not be entitled to claim any equity at the time of partition.
JUDGMENT
Tarlok Singh Chauhan, J —It is not in dispute that the parties to the lis are co-sharers. It has specifically come on record that the petitioner through his predecessor-in-interest has constructed five rooms somewhere in the year 1989 and is now objecting the construction raised by the respondent.
2. This Court in CMPMO No. 52 of 2014, titled Ashok Kapoor vs. Murtu Devi, 2016 1 SLC 207 after considering various judicial pronouncements on the subject, laid down the following principles that would determine the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others:
i) a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the 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.
(v) before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with.
(vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.
3. In view of the law expounded above, this Court is of the considered opinion that after having himself raised the construction over the joint land, the petitioner cannot object the construction now being raised by the respondent. However, it needs to be clarified that such construction shall be entirely at the risk and peril of the respondent and he shall not be entitled to claim any equity qua the same at the time of partition.
4. Accordingly, the petition is disposed of in the aforesaid terms, so also the pending application(s) if any. Interim order granted by this Court stands vacated. Records of the case be sent back immediately to the Court below.
