A co-owner in exclusive possession of a joint property may raise construction on their portion without infringing on the rights of other co-owners.

JUDGEMENT

1. Supervisory jurisdiction of this Court has been invoked by the petitioner herein seeking quashment of order dated 18.01.2023 (for short 'impugned order') passed by the court of Additional District Judge, Kathua (for short 'appellate court') in appeal titled as “Ashok Kumar v. Neelam Sharma & Ors.”.

2. The facts emerging from the record would reveal that the petitioner herein filed a suit before the Court of Munsiff, Hiranagar (for short, 'the trial court') for partition and injunction against the respondent 1 herein as defendant and proforma respondents 2 and 3 herein as proforma defendants 2 and 3 stating therein that she along with the defendants/respondents herein are joint owners and in possession of land measuring 04 kanals and 12 marlas covered under survey No. 121 min situated at village Chak Bhagwana Tehsil Hiranagar and that the said land vested unto her on account of the death of her husband being the brother of the defendant/respondent 1 herein and that her husband constructed a residential house as per the family settlement over the suit land ten years back and during the said time, the defendant/ respondent 1 herein asked her husband to allow him to fill the plinth over the suit land and in case same is allowed to the defendant/respondent 1 herein, he will, in lieu thereof, provide possession of the half of the residential house situated in the middle of village Chak Bhagwana to him whereupon her husband allowed the defendant/ respondent 1 herein to fill the plinth which plinth is in equal to the plinth of her house constructed by her husband and that the defendant/respondent 1 herein instead of providing possession of the half of the aforesaid residential house to her, the defendant/ respondent 1 herein forcibly took the possession of her house and also thereafter constructed a new residential house in the premises of old residential house which she could not oppose on account of the untimely death of her husband and that the defendant/respondent 1 herein few days back collected building material for raising further construction over the aforesaid plinth filled by the defendant/respondent 1 herein earlier and upon being resisted by her, the same defendant/respondent 1 herein refused to desist therefrom leaving no option for the petitioner but to file the suit.

3. Along the suit, the plaintiff/petitioner herein filed an application for interim relief which came to be disposed of on 11.10.2021 after the defendant/respondent 1 herein appeared and filed objections thereto as also written statement to the suit in terms whereof the trial court directed the parties to maintain status quo on spot with respect to the suit land, aggrieved whereof the defendant/respondent 1 herein preferred an appeal before the appellate court on 03.11.2021, which came to be disposed of in terms of the impugned order by the appellate court whereby the order of the trial court came to be set aside and consequently, the defendant/respondent 1 herein came to be allowed to complete his construction as per the prevalent building construction rules in the area over the suit land.

4. The impugned order is being challenged by the petitioner inter alia on the ground that the same is bad, illegal having been passed in haste virtually deciding the suit.

5. Objections to the petition had been filed by the defendant/respondent 1 herein wherein the petition is being opposed and grounds urged in the petition are controverted.

Heard learned counsel for the parties and perused the record.

6. The core issue involved in the present petition which falls for consideration of this Court is as to whether the impugned order could have been passed by the appellate court in favour of the appellant/respondent 1 herein authorizing him to raise construction over the suit land stated to be a co-sharer/co-owner of the suit property with the plaintiff/petitioner herein.

7. The law is no more res integra and stands settled by a series of judgment by various High Court