Point of Law: Writ Court should not interfere in cases of property rights and in dispute between private individuals unless there is any infraction of statute or when the private individual is shown to be in collision with a statutory authority.

JUDGMENT :

1. The petitioner through the medium of present petition filed under Article 227 of the Constitution of India seeks issuance of writ of certiorari for quashment of order dated 28.10.2021, passed by the court of learned Additional District Judge, Jammu. The said court denied the interim relief to the petitioner in the suit.

2. The case of the petitioner in the suit is that he along with the defendants is co-sharers in the land measuring 05 kanal 05 marlas in khasra no.2319 and 01 kanal 14 marlas falling in khasra no.2320 situate at Kote tehsil Bhalwal, Jammu and has not been partitioned till date. The parties have been in the peaceful possession of the suit property and being held by the parties to the suit together as co-sharers equally. The plaintiff and the defendants in the suit are real brothers. The defendants after the death of the father of the parties intended to start construction on the suit property which compelled the plaintiff to approach the SDM, Jammu (North) with a complaint and the Tehsildar stopped the construction that was being raised by the defendants. The plaintiff approached the Tehsildar for implementation of order but no action has been taken by the Tehsildar when approached. As the defendants continued with the construction, the same has given cause of action to the plaintiff to file the present suit. The prayer in the suit is for restraining the defendants from dispossessing the plaintiff or interfering into his peaceful possession of the suit property to the extent of his share or transfer the property by any mode.

3. The written statement is filed by the defendants wherein it is submitted that the defendant No.1 is in possession of 10 kanals 15 marlas of land and out of which 3 kanals 6 ½ marlas falling in khasra no.2319 has been acquired by the National Highway and the compensation awarded was managed to be transferred by the plaintiff in his account and now the defendant is in possession of more than 7 kanals of land in this khasra number. The property consisting of 50 kanals of land in different khasra numbers was partitioned by the father of the parties during his life time. The defendant No.1 being in possession of his own share, he cannot be deprived of his right to raise construction in the land occupied by him. It appears from the record annexed with the file that the plaintiff filed further pleadings in the matter wherein he has more or less reiterated the stand taken in the plaint. The plaintiff has denied that any oral partition has taken place.

4. The plaintiff also filed application for interim injunction before the trial court. The trial court vide order dated 01.10.2021 dismissed the application and allowed the defendant No.1 to raise the construction with the rider that in case the partition is to take place and the construction is required to be demolished the same shall be carried out by the defendants without raising any claim or compensation from the other co-sharers or that the construction being raised shall in no way exceed his share. The appeal preferred against the order of the trial court also came to be dismissed by the court of learned Additional District Judge, Jammu vide order dated 28.10.2021.

5. The relief claimed by the petitioner herein in the suit is to the extent that the defendants be restrained from dispossessing or interfering in the peaceful possession of the plaintiff to the extent of a share measuring 5 kanals 5 marlas in Khasra No. 2319 and 1 kanal 14 marlas falling in Khasra No. 2320. The perusal of the written statement filed by the defendants reveals that the defendant No.1 claims to be raising construction in the land allegedly within 7 kanals and 8 ½ marlas of the land falling in Khasra No. 2319. The plaintiff has vaguely stated of his and that of the defendants physical possession in the land in question. He has not stated the extent of suit land of which he is in physical possession, though the plaintiff at the same time states that the defend