IMPORTANT POINT
Injunction--A co-sharer cannot be prevented from raising any construction over his share of the land or any vacant piece of land in his exclusive possession even if the property is stated to be joint.

Permod Kohli, J.- This is defendant’s revision petition against the order dated 11.11.2004 passed by the learned Additional District Judge, Gurgaon, in Civil Misc. Appeal, against the order dated 26.2.2004 passed by the learned Civil Judge (Junior Division), Gurgaon. Vide the impugned order, the learned Lower Appellate Court has directed to maintain status-quo with regard to the construction over the land in question till the final decision of the suit. This order has been passed after setting aside the order dated 26.2.2004 passed by the learned Civil Judge (Junior division), Gurgaon, whereby the application for ad interim injunction was dismissed by the learned trial Court.

2. The respondents filed a suit for partition with consequential relief of permanent injunction claiming the suit land to be joint between the parties, who are co-sharers. Along with the suit, an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure also also came to be filed seeking restraint order against the defendants from raising any construction over the vacant part of the property.

3. It is admitted case of the parties that Baljit Singh, Ajit Singh and Surjit Singh are the real brothers, who are sons of Budh Ram, who was the original owner of the land in question. The parties are in possession of separate parts of the suit land. It has been claimed in the suit that the parties are co-sharers in the joint possession of the land total measuring 3 Bighas, 4 Biswas and 4 Biswansis. It was further alleged that the defendants want to diminish the value of the suit land by changing its nature by raising construction and in the event, they succeeded in doing so, the plaintiffs will suffer irreparable loss, which cannot be compensated in terms of money.

4. Defendant Nos.1 and 2 are the legal representatives of Ajit Singh son of Budh Ram, whereas the plaintiffs are the legal representatives of Baljit Singh son of Budh Ram. Defendant No.3 Surjit Singh is the third son of Budh Ram and brother of late Baljit Singh, Ajit Singh, whereas defendant Nos.4 and 5 are the sons of Surjit Singh. Defendant Nos.3 to 5 claimed that they are in exclusive possession of the portion of the land where they intend to raise construction. It has been further pleaded that Baljit Singh and Ajit Singh sold most of their shares in the suit land to various persons and those purchasers have already constructed shops and houses on the same. It has also been pleaded that even Smt.Sheela widow of Ajit Singh has constructed shops in the land of her share. According to defendant Nos.3 to 5, the land belonging to the share of defendant No.3 is lying vacant and they intend to raise construction over their share as the property stands partitioned since the life time of Budh Ram. The defendants have also placed on record a site plan showing separate portions in possession of defendant No.3, his two brothers, Ajit Singh and Baljit Singh and also the construction raised by the various vendees, who purchased the property from Baljit Singh and Ajit Singh.

5. On the basis of the pleadings of the parties and the material placed on record, the learned trial Court dismissed the application for ad interim injunction, while passing the order dated 26.2.2004. The learned trial Court also relied upon various sale deeds executed by Baljit Singh and Ajit Singh in favour of third parties admitting therein that the plots sold have fallen to their shares in family partition. The learned trial Court also noticed that the site plan produced by defendant No.3 showing separate possession of the respective parties and also the construction raised by the various vendees over the plots purchased by them from Baljit Singh and Ajit Singh, has not been disputed.

6. Aggrieved of the order dated 26.2.2004, the plaintiffs filed a Civil Misc. Appeal in the Court of learned Additional District Judge, Gurgaon, who vide the impugned order dated 11.11.2004 set aside the order of the learned trial Court, w