A co-sharer in exclusive possession of a portion of the joint property has the right to maintain and enjoy the property till it is partitioned, and the other co-sharers cannot restrain the co-sharer in possession from raising construction on the property.

N.K.Kapoor, J.

1. This revision petition is against the order of the Additional District Judge dated 14.1.1995 whereby the interim injunction granted by the trial Court has been vacated.

2. Plaintiff filed a suit for permanent injunction restraining the defendant from raising any construction over the property in dispute and by way of interim injunction prayed that the defendant be restrained from changing the nature of the property or raising any construction during the pendency of the suit.

3. The application was contested by the other party on the ground that applicant is not the owner of this property in dispute. According to the defence Prithvi Raj Sethi executed a will and all his sons got separate share in the property in dispute on the basis of will executed by Prithvi Raj Sethi. According to the defendant, the portion shown red in the map was under the tenancy of M/s. Chunni Lal Shyam Sunder, through Shyam Sunder Proprietor, which has now been purchased from one of the owners, namely, Subhash Chander Sethi vide two sale deeds dated 20.9.1994 and 26.9.1994.

4. Trial Court on perusal of the averments made by the parties came to the conclusion that plaintiff has 1/3rd share in the Property in dispute and similarly his brothers Ravinder Nath Sethi and Satish Chander Sethi too have 1/3rd share each in the property in dispute and so the sale made by Subhash Chander Sethi can be termed as a sale of his share in the joint property. Holding so, the Court restrained the respondent from raising any construction over the suit property without getting it partitioned by metes and bounds.

5. Before the appellate Court, it was argued by the learned counsel for the appellant that he purchased the area which was under his tenancy from Subhash Chander Sethi, one of the co-sharers for a valuable consideration vide two sale deeds dated 20.9.1994 and 26.9.1994. The area sold by Subhash Chander Sethi does not exceed his entitlement. This way, the appellant has become owner in possession on account of these sale deeds. It is precisely for this reason that he has made statement to the effect that any construction/alteration made by him would be at his own risk and he would not claim any damages even if this particular property goes out of his possession at the time of partition. The lower appellate Court found substance in this plea of the appellant and so ordered to vacate the interim injunction granted by the trial Court.

6. It has been argued by the learned counsel for the petitioner that the lower appellate Court has erred in law in reversing the well considered order of the trial Court and this way has acted illegally and committed material irregularity. According to the counsel, discretion exercised by the trial Court cannot be interfered by the appellate Court unless the same is perverse. In the present case, since admittedly there has been no partition of the joint property, the plaintiff is well within his right to get a restrain order preventing the defendant from raising any fresh or further construction upon the joint property. A number of judgments have also been cited in support of the plea that Co-sharer has no right to raise any construction in respect of the joint property till the same is partitioned and has fallen to his share exclusively. Merely, for the reason that respondent is in exclusive possession of a portion of the joint property could hardly be construed a factor entitling him to raise construction.

7. Counsel for the respondent on the other hand argued that even as per the case of the petitioner the property in dispute has fallen to the share of three brothers, namely, Subash Chander Sethi, Ravinder Nath Sethi and Satish Chander Sethi. Total area approximately measures 391 Sq. yards. This way, Subhash Chander Sethi, predecessor-in-interest of the present respondent was entitled to approximately 130 Sq. Yards of land. Examined so, the two sale deeds executed by him in all measures 99 Sq. Yards and that too