IMPORTANT POINTS
Injunction--Suit for permanent prohibitory injunction--Co-sharer can transfer his undivided share but no possession can be handed over to vendee unless property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of court
Injunction--Suit for injunction simplicitor is not maintainable by purchaser from co-owner vendor against another co-owner.

Alok Singh, J.

1. Plaintiff petitioner herein has invoked jurisdiction of this Court under Article 227 of the Constitution of India assailing the order dated 02.02.2010 passed by the learned Appellate Court/Additional District Judge, Gurgaon, whereby the Appellate Court has allowed the appeal filed by the defendants respondents against the order dated 25.02.2009 passed by the learned Civil Judge (Junior Division) Gurgaon, on an application under Order 39 Rules 1 and 2 C.P.C. and permitted the defendants to raise the construction, clarifying that defendants shall not be entitled to any compensation regarding the construction raised by them and same shall be subject to the partition.

2. The brief facts of the present case are that plaintiff petitioner herein filed a suit for permanent prohibitory injunction against the defendants, inter-alia, alleging therein that plaintiff is co-owner and in joint possession of agriculture land bearing Khewat No.30, Khata No. 48, Rect. No. 28, Killa No. 3/2(3-16), 8(8-0), 13 (8-0) total measuring 19 kanal 16 marlas, to the extent of 8 kanal 14 marlas situated in Village Bans Haria, Tehsil and District Gurgaon. The predecessor-in-interest of the defendants late Shri Jai Singh was owner of 1/2 share in the suit land. After the death of Shri Jai Singh on 4.4.1996, his 1/2 share was inherited by defendants and his three daughters, namely, Smt. Usha, Kiran Bala and Smt. Nisha vide mutation No. 1134. The said sisters of defendants have sold their entire 3/16 share to the plaintiff vide registered sale deed dated 23.06.2006 for valuable sale consideration and since then the plaintiff and defendants are co-owners and in joint possession of the suit land. The said land has not been partitioned till today either orally or mutually or by metes and bounds and the parties to the suit are still co-owners in joint possession of the same. Every co-sharer has right on every inch of the joint holdings. No co-sharer can be legally allowed to diminish the value and utility of the joint holding by changing nature and by raising any sort of construction over any specific portion of the land and encroaching upon joint holding without partition of the land by metes and bounds. An application seeking ad interim injunction under Order 39 Rules 1 and 2 C.P.C. was also moved along with the plaint.

3. Defendants filed their written statement and reply to the ad-interim application and it has been stated by the defendants that suit of the plaintiff is not maintainable. Defendants have already filed suit prior in time against the vendors of the plaintiff in which the plaintiff had already moved an application under Order 1 Rule 10 C.P.C. It is further contended by the defendants that plaintiff is the big builder and wants to grab the property of the defendants by putting all sort of pressures on the defendants. It was further contended that suit for injunction is not maintainable.

4. Learned Civil Judge (Junior Division), Gurgaon, vide order dated 25.02.2009 allowed the ad-interim injunction application moved by the plaintiff and has held that defendants cannot raise the construction over any portion of the suit land without getting the same partition. It was further held by the learned Civil Judge that plaintiff is the co-owner and even if vendor of the plaintiff had sold more then his share even then sale to the extent of their share is legal and valid.

5. However, in appeal, learned Additional District Judge reversed the order of the learned trial Court and allowed the defendants to raise construction with this condition that defendants shall not be entitled to any compensation regarding the construction raised by them which shall be subject to the partition.

6. I have heard learned counsel for the parties and have perused the record carefully.

7. Mr. Ashwani Kumar Chopra, learned Senior counsel for the petitioner assisted by Ms. Sivani Sehgal, Advocate, while placing reliance upon the Full Bench judgment of this