Co-sharer's right to raise construction on exclusive possession, subject to partition and removal if required

M.L.Singhal, J.

1. Harbans Singh and Mukhtiar Singh filed suit for permanent injunction against Tara Singh and other restraining the latter from making any sort of construction over joint property bearing Khewat Khatauni No. 247/293 Khasra No. 250 shown in red in the plan attached to the plaint situated in village Buzurg, Tehsil Jagraon as per Jamabandi for the year 1990-91 without getting it partitioned. It was alleged in the plaint that they are co-sharers in the suit property bearing Khasra No. 250 measuring 14 Marias ibid. Tara Singh and Ors. defendants No. 1 to 4 are co-sharers in the suit property and are in possession as co-sharers. So far the suit property has not been partitioned and the defendants are taking steps to raise construction on the suit property without getting it partitioned.

2. Defendants contested the suit of the plaintiffs. It was urged that Mukhtiar Singh plaintiff No. 2 had adjoining his property abutting the suit property on the northern side. He sold that property along with share in the suit property to the sons of Sodagar Singh a few years ago. After purchase the sons of Sodagar Singh merged the share of Mukhtiar Singh in the suit property by raising a boundary wall. In this manner, Saudagar Singhs sons are in possession of the share of suit property. Harbans Singh plaintiff No. 1 exchanged his share in the suit property with the defendants. It was an oral exchange followed by delivery of possession about 15 years ago. In that exchange, Harbans Singh delivered his share in the suit property into the possession of the defendants. Defendants in turn gave their share in Khasra No. 14R/26 to the plaintiff. Harbans Singh too had thus no share in the suit property and the defendants have become owners in possession of his share in the suit property. Defendants, have been in possession of the suit property not as co-sharer but in their own right for the last about 50 years. The other property of the defendants abuts the suit property on western and southern sides. There are spouts of the houses of the defendants through which the water of the houses of the defendants finds outlet through the suit property. Suit property is enclosed by walls. Defendants tether their cattle and also keep their fodder. They are in adverse possession. Their possession is uninterrupted, hostile, open and continuous for the last more than 12 years. Plaintiffs are no longer co-sharers.

3. On the pleadings of the parties, the following issues were framed:-

1. Whether the plaintiffs are entitled to permanent injunction prayed for?OPP

2. Whether the plaintiffs are estopped by their acts and conduct from filing the present suit.OPD

3. Whether the suit is not maintainable in the present form?OPD

4. Whether the site plan filed by the plaintiff is wrong, if so, its effect?OPD

5. Whether the suit of the plaintiffs is barred by time?OPD

6. Whether the plaintiffs have no locus-standi to file the present suit?OPD

7. Relief.

4. Plaintiffs suit was decreed by Civil Judge, Junior Division, Jagraon vide order dated 19.2.97 for permanent injunction restraining the defendants from raising any construction over the joint property bearing Khewat Khatauni No. 247/293 Khasra No. 250 as detailed in the heading of the plaint without getting the same partitioned. In view of his findings, that the property is joint, in which the plaintiffs and defendants No. 1 to 4 are co-sharers and as such without partition, the defendants cannot raise any construction. It was found that Mukhtiar Singh plaintiff had not sold his share" in the suit property and he was lying shown in jamabandi for the year 1991-92 as co-sharer to the extent of 1/6 share in the suit property comprising Khasra No. 250. "It was found that no exchange had taken place between Harbans Singh and the defendants. Plaintiffs suit was found within limitation. Defendants plea as to adverse possession was negatived and the suit was found to be within time.

5. Not satisfied with the judgmen