A co-owner seeking injunction must establish a prima facie case and the remedy for a co-owner is to seek partition, not injunction, unless the act of the co-owner in possession is detrimental to the interest of other co-owners.

Vinod K. Sharma, J. - The petitioner has invoked jurisdiction of this court under Article 227 of the Constitution of India to challenge the order passed by the learned Civil Judge (Jr. Division), Gurgaon and that of learned Additional District Judge, Gurgaon allowing an application moved by the plaintiff respondent seeking injunction, under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure.

2. The plaintiff respondent filed a suit for permanent injunction restraining the defendant-petitioner from raising any sort of construction or encroaching upon valuable portion of the land in question without getting the same partitioned by metes and bounds.

3. Respondent plaintiff claimed that he is co-owner in joint possession of the land in dispute situated at village Samnka Tehsil Farrukhnagar District Gurgaon. Plaintiff respondent claimed that he purchased share in the suit land with Satpal Yadav vide registered sale deed bearing Vasika No. 232 dated 25.4.2006 and separately vide sale deed dated 15.2.2006 and since the date of purchase he is recorded as co-owner in joint possession. It is the case of the plaintiff that the land is still joint and has not been partitioned.

4. It is also the case of the plaintiff respondent that defendant petitioner purchased some land out of Khewat/Khata No. 73/75 and 74Min/76. Thus, he is also co-sharer in the land in question. It was claimed that being co-sharer he has no right to change the nature of the suit property or to raise construction over the joint property without getting the same partitioned.

5. The defendant contested the suit and claimed that the plaintiff is not co- owner in joint possession of the land in suit, as, there has been an oral family partition between previous owners of the land and all the cosharers became owners in possession of their respective shares and specific share had fallen to the share of Ram Chander son of Budsha. The said land was handed over to the defendant and it has already fixed its board. It was claimed that specific portion has been purchased by the defendant petitioner that the plaintiff has also purchased specific share of co-owner and had taken physical possession to the extent of his share and he is in possession of share.

6. Learned trial court came to the conclusion that the parties are co-sharers in the suit land as per the revenue entries and the defendant, therefore, cannot change the nature of the land by raising construction.

7. The case set up by the plaintiff respondent was that in case the defendant raises construction the plaintiff is likely to suffer irreparable loss. The petitioner contested the case by raising a plea that the plaintiff is not co- sharer with the defendant and a specific portion has been purchased. The plea of family partition was also raised.

8. Learned trial court came to the conclusion that as per the revenue record the parties are co-sharers as no partition has been reflected in the revenue entries. The court also came to the conclusion that unless and until family partition is reflected in the revenue record it has to be presumed that the parties are co-sharers. This finding is not in accordance with law as mere non-reflection of partition can not lead to conclusion that there is no partition, which is otherwise proved.

9. Learned trial court also came to the conclusion that the co sharer has interest in the whole of the property and therefore, it was not open to the co-sharer to change the nature of the land to the detriment of other co- sharer. The court also came to the conclusion that the plaintiff was likely to suffer irreparable loss and thus, allowed the application moved under Order 39 Rules 1 and 2 of the Code.

10. The petitioner preferred an appeal. Learned lower appellate court also held that as partition was not reflected in the revenue record the parties are deemed to be co-sharers. It was also observed that in the sale deed no mention of oral partition was made. It wa