Co-sharers can construct on their respective shares of joint land without infringing on others' rights; exclusive possession does not confer separate ownership until legally partitioned.

JUDGMENT :

Bipin Chander Negi, J.

The subject matter of the dispute between the parties is land measuring 8-1-0 bigha comprised in Khasra No.6144 contained in Khatauni No.258 of Khata No.204 as entered in the Jamabandi for the year 2001-2002 of Phati Kharahal, Kothi Kais, Tehsil and District Kullu, H.P. (hereinafter referred to as the suit land).

2. The appellant before this Court was the plaintiff before the trial Court. The appellant in the plaint filed before the trial Court claimed joint ownership and possession over the suit land with the defendant along with other co-sharers. According to the appellant/plaintiff, the cause of action arose on 15.06.2010, when, as per the appellant, the respondent/ defendant with an intention to grab valuable, specific portion of the suit land exceeding his share started digging the suit land for the purpose of raising construction thereupon without getting the suit land partitioned.

3. The respondent/defendant, in his written statement, on merits stated that he had purchased his share measuring 0-8-0 bigha vide sale deed dated 30.01.2006 from one Tehal Singh, son of Shri Bhagh Chand and as per respondent/defendant, a specific portion of the suit land was delivered to the respondent/defendant towards the North of the land of Shri Satish Pathania, Jr.E. According to the respondent/defendant, subsequent to purchase of the land, respondent/defendant had fenced his area and constructed one storey building thereupon. The construction, as per the respondent/defendant was raised over an area measuring 0-3-10 bigha out of the total share of 0-8-0 bighas.

4. On the basis of the pleadings, 10 issues were framed and for the purpose of adjudication of the present lis, only five issues which are relevant are being reproduced herein below for a ready reference:-

“1. Whether the suit is jointly owned by the parties to the suit, as alleged?OPP

2. Whether the defendant is threatening to raise construction over the suit land which is joint and has yet not been partitioned, as alleged?OPP

3. If issue Nos.1 & 2 are proved in the affirmative, whether the plaintiff is entitled to the relief of permanent perpetual injunction, as alleged?OPP

4. Whether in the alternative the plaintiff is entitled to the relief of mandatory injunction?OPP

5. Whether the suit land stands already partitioned and the parties are in settled possession of their respective shares? OPD”

5. Post conclusion of the trial, the trial Court on an appreciation of the pleadings, evidence led held that the suit land is jointly owned and possessed by the parties and has not been partitioned. The onus to prove that the suit land stands partitioned and that the parties are in settled possession, lay upon the respondent/defendant. According to the trial Court, since the respondent/ defendant had not led any evidence to prove partition of the suit land and had not further examined any witnesses, in whose presence the partition had taken place, therefore, the trial Court concluded that the parties were not in settled possession, as was being claimed by the respondent/defendant. Other than the aforesaid, an appreciation of evidence, the trial Court came to the conclusion that the appellant/plaintiff had succeeded in proving the fact that the respondent/defendant was raising construction on the suit land. In the aforesaid facts and attending circumstances of the case, after placing reliance upon the decisions referred to, details whereof have been given while deciding issue No.3 by the trial Court, the trial Court granted the relief of permanent prohibitory injunction in favour of the appellant/plaintiff. Besides the aforesaid, the trial Court granted relief of mandatory injunction in favour of the appellant/defendant as according to the trial Court, the appellant/plaintiff had at the earliest objected to the construction being raised by the respondent/defendant by filing the present suit. Morever, upon institution of the same had immediately got a Local Commission