A co-sharer in possession of a joint holding can continue in possession if it is not more than his share till the joint holding is partitioned.

Sat Pal, J.

1. This petition has been preferred against the order dated 6.3.1997 passed by District Judge, Bhiwani. By this order, the learned District Judge has set aside the order dated 2.9.1996 passed by the learned trial Court and has allowed the application filed by the plaintiff/respondent under Order 39 Rules 1 and 2 C.P.C. and has restrained the defendants from raising any construction over any portion of the suit property without getting the suit property partitioned.

2. Briefly stated the facts of the case are that the plaintiff/respondent and the defendants/petitioners are joint owner in possession of the suit land measuring 85 Bighas and 11 Biswas as per Khewat No. 16, Khatoni No. 43, 44 in terms of jamabandi for the year 1989-90. The plaintiff/respondent filed a suit for injunction against the petitioners/defendants. It was inter-alia alleged in the suit that the plaintiff and defendants were co-sharer in the suit land and though the suit land had not so far been partitioned, the defendants wanted to raise construction on the said land forcibly without getting the suit land partitioned. Alongwith the plaint, the plaintiff also filed an application under Order 39, Rules 1 and 2 read with Section 151 CPC. The aforesaid application was dismissed by the learned trial Court vide order dated 2.9.1996. The learned trial Court observed that the defendants wanted to raise construction on the old Gher which had been constructed by them about 20 years back and they would suffer irreparable loss if they are restrained from raising construction on the old Gher. Aggrieved by the aforesaid order dated 2.9.1996, the plaintiff filed an appeal before the District Judge, Bhiwani who vide his order dated 6.3.1997 has accepted the appeal of the plaintiff and has set aside the order dated 2.9.1996 passed by the learned trial Court as stated herein above.

3. Mr. Yadav, the learned counsel appearing on behalf of the petitioners submitted that the learned trial Court had given valid reasons while rejecting the application filed by the plaintiff/respondent under Order 39 Rules 1 and 2 CPC. he submitted that it was clearly stated in the order passed by the learned trial Court that the defendants were enjoying the property in their possession and they wanted to raise construction on the old Gher which had been constructed by the defendants with the consent of the plaintiff about 20 years back. He submitted that the learned District Judge had not dealt with the aforesaid observations and had allowed the appeal only on the ground that since the plaintiff and the defendants were joint owners in possession of the suit land, and the partition having not taken place, the defendants could not be allowed to make construction over any portion of the suit property. The learned counsel contended that a co-sharer had full right to enjoy use and fruits of property in case the property was under his exclusive possession and was to the extent of his own share. He, therefore, submitted that the impugned order passed by the learned District Judge should be set aside. In support of his submission, the learned counsel placed reliance on two decisions of this Court reported in Satish Chander Sethi v. Chunni Lal Shyam Sunder, (1995-3)111 P.L.R. 685 and Maman Chand v. Kamla, (1996-2)113 P.L.R. 147.

4. Mr. Saini, the learned counsel appearing on behalf of respondent No. 1, however, submitted that there was no illegality in the well reasoned order passed by the learned District Judge. He submitted that it is an admitted fact that the suit property was still joint between the parties and since the parlition had not taken place between the parties so far, the defendants/petitioners could not be allowed to make construction over any portion of the suit properly. In support of his submission, the learned counsel placed reliance on two decisions of this Court in Nazar Mohammad Khan v. Arshad Ali Khan, (1996-1)112 P.L.R. 334 and Om Parkash v. Chhaju Ram, (1992-2)