1(a) Heard. I have perused the record.

2. Question for consideration raised is whether appellant nos. 3 & 4, who in their capacity as co-owners are in exclusive and undisputed possession of a residential annexe, which is part of the joint property of the parties, can be allowed to raise construction of first floor on the said annexe without partition of the joint property by metes and bounds. The ancillary question is whether a, co-owner of unpartitioned joint property can claim injunction against another co-owner restraining him from raising construction on a portion of the joint property of which he has been in exclusive possession.

3. Background facts, which are required to be narrated, briefly, are these:

3.1. Undisputedly the suit property comprising of a kothi built on two plots, nos. 21-A & 21-B, situate at Gandhi Nagar, Jammu was purchased, in different shares by the parties (or their predecessors-in-interest) from its owner Sh. Ram Nath Kapoor by virtue of different sale deeds. Half of the property was purchased in the name of appellant no.2, who is wife of appellant no.1 and l/4th each in the name of appellant no.3 and the respondent. Shares covered under the different sale deed, however, were not specified or delineated so after its purchase, entire property indisputably assumed character of joint property of the parties though in different shares as per the sale deeds (supra).

3.2 Respondent (plaintiff) has filed a suit against appellants (defendants) in the Court of learned Additional District Judge, Jammu for partition of the suit property by meets and bounds and for separate possession. She has contended that her husband had shifted to the suit property first of all and started living in first floor of the kothi. He converted the garage into annexe by constructing four rooms, bath rooms and kitchen to be used as guest house. He also converted tank, small room and toilets existing at south-eastern corner of the land into a hall measuring 30.3 feet x 17 feet about which appellant nos. 1 & 3 raised dispute and matter is subjudice in this Court. He also made some additions and alterations in the main kothi. It is further contended by her that after some time appellants also shifted to the suit property. Appellant nos. 1 & 2 started living in first floor of the kothi and appellant nos. 3 & 4 were accommodated in the above said annexe.

3.3 Respondent has alleged that appellants have started threatening to raise construction on the vacant area around the kothi without partition of the property by meets and bounds and are threatening to occupy most valuable open land which is used as common lawns, pathways and driveway by the respondent to the main kothi in which she is residing in the ground floor.

3.4 Respondent also filed an application under Order 39 Rules 1 & 2 CPC seeking temporary injunction restraining the appellants from raising any construction on the kothi and the open lawns.

3.5 Appellants (defendants) in their written statement have contended that Late Sh. Devki Nandan Kapoor (father of appellant nos. 3 & 4) with the consent of his brothers during his life time had identified the portions of the suit property to be occupied by the parties as per their title deeds. Late Sh. Jai Manmohan Kapoor (husband of respondent) accepted the ground floor of the Kothi as well as land on the southern side where the big hall has been constructed by him. Sh. Devki Nandan Kapoor remained satisfied with the annexe and the vacant land at its front including the pathway, driveway and the porch. Appellant nos. 1 & 2 accepted the first floor of the kothi and the remaining vacant land and the parties are now in possession of their respective portions.

3.6 As regards the new construction, appellants' stand before the trial Court is that appellants (defendant nos. 3 & 4) being short of accommodation wanted to raise construction on the first floor as well as on the vacant land in front of the annexe an