A co-owner cannot seek injunction for restraining another co-owner from raising construction on common property, and the only remedy is to file a suit for partition.

S.D.Anand, J.

1. A plea filed by the plaintiff-respondent under Order 39 Rules 1 and 2 CPC came to be dismissed by the learned Trial Court vide order dated 25.07.2007. However, the learned First Appellate Court reversed that finding in part and restrained the defendants-petitioners from raising any construction over the land in suit, without getting it partitioned, till the disposal of the case.

2. It is apparent from a conjunctive perusal of two orders under adjudication that the parties are co-sharers in the property in dispute and further that the property is unpartitioned till date.

3. It is apparent from the record that a Coordinate Bench (Harbans Lal, J.) of this Court passed interim order dated 14.12.2009 vide which the defendants-petitioners were restrained from raising construction over the land bearing khasra Nos.5//25/2/l(0-13), 25/1 (6-18).

4. In the course of the petition itself, the contents of the affidavit dated 20.06.2003 sworn by plaintiff-respondent stand quoted and are extracted here under:-

"I, Ajit Singh s/d Kawaljit Singh R/o Village Gumtala, Tehsil and District Amritsar solemnly state and affirm as under:- 1. That I have purchased land measuring 7K 11M out of Khasra No.5//25/2/l(0-13), 25/1 (6-18) situated in Village Gumtala, Tehsil and District Amritsar. 2. That this land has been purchased out of the share of Pritam Singh measuring 7 K 7 M situated in Khasra No.4/18/1 (2-0), 17/13 (9-1), 5//16/1(2-10), 25/1(6-18) total measuring 20 K 9 M and 4 M out of khasra No.5/25/2/1 (0-13) total measuring 7 K 11 M and possession at site has been delivered by Pritam Singh to me or land situated in Khasra No.5/25/2/l(0-13), 25/1(6-18). 3. That I will cultivate land situated in Khasra Nos.5/25/2/l(0-13), 25/1 (6-18) only and will continue to possess these khasra numbers only, I have no concern with regard to remaining Khasra numbers. Deponent Sd/- Ajit Dhillon Verified that the contents of above affidavit are correct to my knowledge and no part of it is false and nothing has been concealed. Deponent Sd/- Ajit Dhillon Attested and identified Executive Magistrate, Amritsar."

5 It would be apparent, from a perusal of the above quoted contents of the affidavit, that the plaintiff- respondent Ajit Singh confined his possessory title to land comprised in Khasra Nos.5/25/2/l(0-13), 25/1 (6-18). It was in that view of things, that the order dated 14.12.2009 came to be granted by a Coordinate Bench of this Court.

6. Insofar as the other part of the land is concerned, it still continues to be unpartitioned. The relevant mutation initially sanctioned in favour of the plaintiff-respondent is under adjudication in the Revenue Courts. The learned counsel, appearing on behalf of the defendants-petitioners, undertakes that the defendants-petitioners shall not raise any construction on the land comprised in Khasra Nos.5//25/2/l(0-13), 25/1 (6-18).

7. In view, thus, of the contents of the affidavit sworn by non else or other than the plaintiff-respondent Ajit Singh, it is evident that he had confined proprietary and his possessory claim to the land comprised in Khasra Nos.5//25/2/l(0-13), 25/1 (6-18). He could not, thus, have raised a plea for the restraint of defendant-plaintiffs from raising construction on other than the land above mentioned. Even otherwise, it was held by a Single Bench of this Court in Jai Karan Sharma v. Ram Kumar, 2009(2) Civil Court Cases 083 (P&H) that mere making of construction in a common property would not amount to ouster of the other and that, in such cases, a co-owner cannot seek injunction for restraining from another co-owner from raising construction. It was further held in that ruling that the only remedy available to the aggrieved co-owner would to file a suit for partition. A similar view had earlier been taken by a Division Bench in Bachan Singh v. Swarun Singh, (2000-3)126 P.L.R. 416.

8. The reliance placed by the learned counsel for the plaintiff-respondent upon 2006(2) R.C.R. (Civil)