A co-owner cannot change the nature of the property detrimental to the interest of others without seeking actual partition by metes and bounds.

R.L. Anand, J. (Oral) - Whether a co-sharer/joint owner can change the nature of the joint property by raising construction detrimental to the interest of other co-sharer/co-owner is a point which is going to be adjudicated in the present revision which I am disposing of at the limine stage with the assistance rendered by Mr. S.K. Mittal, the learned Counsel appearing on behalf of the petitioners. The other point which I will determine in this civil revision would be the rights of a co-sharer in the joint holding vis-a- vis other co-sharers. In my opinion, this matter requires to be adjudicated in depth as lot of litigation comes in this High Court on the above propositions which I have just framed above. Before I deal with the case law on this aspect, it will be proper for me to give some facts of the present civil revision which has been filed by Ram Niwas and others against Jai Ram.

2. Jai Ram alias Tej Ram filed a suit for permanent injunction regarding residential plot bearing khasra Nos. 194 and 197 situated within the abadi of village Fejabad alias Pahasor, tehsil and district Jhajjar. The case set up by the plaintiff before the trial Court was that he and defendants No. 1 to 5 are joint owners in possession of residential plot comprised in Khewat No. 18 min khata No. 20 khasra Nos. 194 and 197 and are in joint possession of the plot as co-sharers and the disputed plot is the joint property in possession of the aforesaid parties and is lying vacant. According to the plaintiff these khasra numbers have never been partitioned either mutually or through Court and are being used for preparing cowdung cakes, storing rubbish and fire-woods etc. along with other domestic and agricultural purposes and none of the co-sharers is in exclusive possession over any part of the disputed property, but the defendants No. 1 to 5 in collusion with defendant No. 6 forcibly want to oust the plaintiff from the disputed property by raising construction on more than their shares and this conduct of the defendants is illegal, null and void and unwarranted. The plaintiff requested the defendants not to raise construction over the joint property unless the same is partitioned by metes and bounds, but to no effect. Hence this suit.

3. Along with the suit the plaintiff filed an application under Order 39 Rules 1 and 2 C.P.C. and prayed that during the pendency of the suit the defendants be restrained from raising any construction over the joint property detrimental to the interest of the plaintiff.

4. Notice of the suit as well as the application was given to the defendants. They filed the written statement and denied the allegations. The defendants admitted that they are the joint owners and the disputed properties are joint between the parties. They alleged that in a private partition all the co- sharers demarcated their shares in the disputed properties and thereafter the co-sharers started raising construction over their respective shares. There is no joint owner in the property and defendants are raising construction over the plots which had fallen to their shares in the family settlement and the proposed raising of the construction will not create any hindrance in the rights of the plaintiff. With this broad defence, the defendants prayed for the dismissal of the application under Order 39 Rules 1 and 2 and also the suit.

5. The learned trial Court after relying the judgment of Maman Chand v. Smt. Kamla Devi, 1995(3) Latest Judicial Reports 428 dismissed the application for the reasons given in paras 5 to 8 of the order dated 16.8.1999, which are reproduced as under :-

"5. As far as the prima facie case of the applicant/plaintiff is concerned, the perusal of pleadings of the parties itself reveals that both the parties admitted the fact that earlier the disputed properties were joint properties of the plaintiff and defendants. If the version of the plaintiff is taken to be true then the disputed plots are still joint properties of the