IMPORTANT POINT
A co-sharer in exclusive possession of a portion of joint property has the right to construct on that portion without interference from other co-sharers, provided that the construction does not infringe upon the rights of the other co-sharers.

JUDGMENT :

SANJAY DHAR, J.

1. The petitioner has challenged order dated 13.12.2022 passed by learned Additional District Judge, Budgam (hereinafter referred to as the appellate court), whereby, in an appeal filed against the order of Munsiff, Budgam (hereinafter referred to as the trial court), the respondents(hereinafter referred to as the defendants) have been permitted to raise construction over the suit land subject to an undertaking that they will dismantle the construction in case the petitioner(hereinafter referred to as the plaintiff) succeeds in the suit and at the same time, the defendants have been directed not to create any third party interest in the suit property.

2. It appears that the plaintiff has filed a suit against the defendants seeking a declaration that she is entitled to 42 kanals and 10 marlas of land situated at Zooribagh, Budgam. A decree of partition of the suit land measuring 61 kanals along with the decree of possession in respect of the remaining share of 06 kanals and 10 marlas in the suit land has also been sought. The plaintiff has also sought an injunction against the defendants restraining them from interfering in the exclusive possession of the suit property which falls in her share.

3. The case of the plaintiff before the trial court was that 61 kanals of land belonging to the predecessor-in-interest of the parties was inherited by her and the defendants as per the law of inheritance. According to the plaintiff, she is a Khana Nisheen daughter whereas proforma defendants are Khana Beeron daughters. It has been pleaded that the plaintiff has inherited two shares from the property of her father and mother respectively measuring 42 kanals and 10 marlas from the suit land measuring 61 kanals. It has been further pleaded that the plaintiff is in exclusive ownership and possession of the aforesaid property but on spot she has possession of only 36 kanals of land whereas the remaining portion of the land is in possession of the contesting defendants No. 1 to 6. According to the plaintiff, she asked the contesting defendants to partition the suit land and handover possession of her remaining share to her but they refused. It is also pleaded that the contesting defendants are raising construction on the suit land and are trying to create third party interest.

4. The contesting defendants filed their written statement in which it has been pleaded that the plaintiff and her sisters are entitled to only 17 kanals and 11 marlas of land and there is no question of the plaintiff holding land measuring 36 kanals out of the suit land. It has been pleaded by the contesting defendants that they are entitled to get 17 kanals and 11 marlas of land from the estate left behind by the predecessor-in-interest of the parties and another 11 kanals and 02 marlas of land under the provisions of Agrarian Reforms Act. According to the contesting defendants, their entitlement is 28 kanals and 13 marlas of land out of the suit land. It has been further submitted that the land falling under Survey No. 15 has fallen to the share of defendant No. 3 and when he started construction of his residential house, the plaintiff filed the suit in order to restrain him from enjoying his share of the property.

5. The learned trial court after hearing the parties decided the application of the plaintiff for grant of interim injunction vide order dated 29.06.2021. The learned trial court, while allowing the application of the plaintiff, directed that status quo on spot be maintained till disposal of the main suit. While passing the aforesaid direction, the learned trial court opined that the plaintiff has successfully shown that there is a prima facie case in her favour, that there is a threat regarding violation of her right and that an irreparable loss and injury will be caused to the plaintiff in case the injunction is not granted in her favour.

6. The aforesaid order came to be challenged by the contesting defendants by filing an appeal bef