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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Jaswant Singh, J.
Abhey Singh - Appellant
Versus
Gian Singh & Ors. - Respondent
CSA No. 123/1970
Decided On : 31 December, 1970
Joint Property - Construction of Chhun - The court held that a co-sharer has no right to construct any building on joint land without the consent of other co-sharers, even if the construction does not cause direct loss to other joint owners. The court also emphasized that the remedy for the appellants lay in a suit for permanent injunction, not in an action for partition.
Fact of the Case:
The plaintiffs filed a suit for mandatory injunction to restrain the defendants from constructing a Chhun on the banks of a pond, which was joint property of the parties and other co-sharers of the village.
Finding of the Court:
The court found that the construction of the Chhun would obstruct co-sharers from performing rituals and pollute the water of the pond used for drinking and washing purposes. The court allowed the appeal, set aside the judgment of the lower appellate court, and restored that of the trial court. The plaintiff was granted an injunction directing the respondents to remove the Chhun.
Issues: The main issue was whether the plaintiffs were entitled to a mandatory injunction restraining the defendants from constructing a Chhun on the joint property.
Ratio Decidendi: The court held that a co-sharer has no right to construct any building on joint land without the consent of other co-sharers, and the remedy for the appellants lay in a suit for permanent injunction, not in an action for partition.
Final Decision: The appeal was allowed, the judgment and decree of the lower appellate court were set aside, and the plaintiff was granted an injunction directing the respondents to remove the Chhun. There was no order as to costs.
Certainly. Based on the provided legal document, here are the key points summarized:
A co-sharer does not have the right to construct any building on joint land without obtaining the consent of the other co-sharers. This principle applies regardless of whether the construction causes direct harm or loss to other co-owners (!) (!) (!) .
The appropriate remedy for a co-sharer who wishes to prevent unauthorized construction is a suit for a permanent injunction, rather than an action for partition of the property [judgement_subject] (!) .
The case involved a dispute over the construction of a structure (Chhun) on joint property, specifically on the banks of a pond used collectively by co-sharers. The court found that such construction would obstruct religious rituals and pollute the water, adversely affecting the co-sharers' use of the property [Fact of the Case] (!) (!) .
The court emphasized that even if the construction does not cause direct damage, it is not permissible for a co-sharer to build on joint land without the consent of others. The law provides mechanisms for partition if co-sharers wish to divide the property, but unilateral construction is not allowed (!) (!) .
The court held that the remedy for the appellants was to seek an injunction to prevent or remove unauthorized constructions, rather than pursuing a partition action. The appeal was allowed, and the lower court's judgment was set aside in favor of granting the injunction [Final Decision] (!) .
The decision underscores that in joint property, the rights of co-sharers are limited to use and enjoyment, and any construction or alterations require mutual consent. Unauthorized construction can be restrained through an injunction, especially when it causes obstruction or pollution affecting other co-sharers’ rights (!) (!) .
No costs were awarded in this case, and the court ordered the respondents to remove the unauthorized structure (Chhun) during the pendency of the appeal [Final Decision] (!) .
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2. It is common ground between the parties that the land on which the Chhun was built or sought to be re-built was the joint property of the parties and other co-sharers of the village. Although the co-sharers are entitled to use the common land but the user cannot be such as to cause harm or injury to the other co-sharers. I am fortified in this view by a decision of the Allahabad High Court in Najju Khan v. Imtiaz-ud-Din, I. L. R. 18, Allahabad, 115, which was followed in I. L. R. 27 Allahabad, 688; 32 Indian Cases, 690 and A.I.R. 1925 Allahabad, 700.
3. In all these authorities it has been laid down that one co-sharer out of the many has no right to build on what is joint land without the consent of the others notwithstanding that the erection of such building may cause no direct loss to other joint owners.
4. I am tempted to quote the following observations made by a Division Bench of the Allahabad High Court in I. L. R. 18 Allahabad, 115 (Supra).
"The law provides a legitimate means by which any co-sharer may obtain partition. The law does not favour one co-sharer adversely to the other co-sharer making a partition in his own favour and selecting the portion of the land he likes by erecting a building upon it.
I am also supported by a decision of our own court in Thakkar Sahib V. Chartoor and another, 1998 JKL Reports, 464 where it was held: -
"A co-sharer has no right to grant a licence to a stranger to construct any building on any piece of joint land. It is well settled that even a co-sharer cannot construct any building on any portion of the joint land without the consent or permission of his co-sharer and he has, therefore, no right to allow any stranger to do what he (co-sharer) himself cannot do on a joint piece of land."
The position regarding impartable properties was succinctly summed up by the Lahore High Court in Yusuf Alim Hakimji v. Mohammad Din and Sons, A. I. R. 1927 Lahore, 718, in the following words: -
"In a suit for injunction against a co-owner relating to the erection of structure on the joint property, if the property is not partible, there is no occasion for the plaintiff to show any special damage. It is sufficient for him to show that he has been deprived of the user of the property as it stood originally."
The authority was followed in Chhaganlal v. Kesarlal and ors, A. I. R. 1950 Rajasthan, 97.
5. Keeping in view the ratio decidendi of the aforesaid authorities, I am of the view that the learned District Judge was wrong in observing that the remedy of the appellants lay not in a suit by way of permanent injunction but in an action for partition. The rulings alluded to by him in support of his observations are clearly distinguishable and have no bearing on the present case which does not relate to a cultivable land and in which it is also established from the evidence lead by both the parties that the construction of the Chhun (cattle shed) on the banks of the pond near Devasthan would not only cause obstruction to a large number of co-sharers in performing puja and other rituals but would also pollute the water of the pond which is used for drinking and washing purposes.
6. For the fore-going reasons, I allow the appeal, set aside the judgment and decree passed by the lower appellate court and restore that of the trial court. The plaintiff shall also be entitled to injunction directing the respondents to remove the Chhun which appears to have been constructed by them during the pendency of this appeal.
7. There will, however, be no order as to costs.
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