Validity of partition order and change of nature of suit property must be determined based on the actual legal status of the property, not on presumptions.

Vinod K. Sharma, J. - By way of present revision petition the challenge is to the orders passed by the learned Courts below under Order 39 Rules 1 and 2 of the Code of Civil Procedure vide which the defendant-petitioner was restrained from alienating the suit property beyond his share and was also restrained from changing any specific portion of the suit property in any manner during the pendency of the suit. He was further restrained from parting with possession of suit property beyond his share. He was also restrained from changing the nature/character of the suit property during the pendency of the suit. However, he was permitted to put his share to commercial or agricultural use as a prudent man can do, but he can do so provided it does not affect the nature/character of the suit property.

2. The case set up by the plaintiff-respondent was that he along with defendant-petitioner and Hardip Singh were owners of the suit property in equal shares. The property detailed in headnotes (a) to (c) was agricultural land while property detailed in head note (d) was residential house.

3. It was the case of the plaintiff-respondent that on coming to India on 2nd of July 2004 he learnt that defendant had got an ex parte order dated 14.6.2004 from the Court of Assistant Collector Ist Grade, Phagwara, for partitioning of the land mentioned in the headnote (a) in the suit land and had started raising construction of building and boundary wall on the part of the land after cutting sugarcane sown by the plaintiff through contractor Bahadur Singh and he was changing the nature of the agricultural land to abadi area jeopardizing the interest of the petitioner in the suit land alleged to be joint. It was claimed that the ex parte order dated 14.6.2004 had not become final as the plaintiff-respondent had already moved the Court of Assistant Collector Ist Grade, Phagwara, to get the said order set aside. It was further pleaded that the defendant-petitioner was threatening to raise construction in the other joint land and to damage the land and demolish the kothi in question and was threatening to sell/exchange/mortgage the agricultural land and to hand-over the possession of specific khasra numbers despite his request.

4. The application was contested by the defendant-petitioner herein on the ground that there was no cause of action in the suit and the plaintiff- respondent had no locus standi to file the suit. Its maintainability was also challenged. It was claimed that the plaintiff-respondent had concealed the material facts.

5. On merit, the stand of the petitioner was that the suit land had been partitioned vide order dated 14.6.2004 passed by the Assistant Collector Ist Grade, Phagwara, and the said order had become final and Sanad Takseem had been issued on 15.7.2004 after the expiry of period of filing of appeal. It was further claimed by the defendant-petitioner that by partition he was allotted Khasra Nos. 556/1/9-9, 557(11-13) and 558/1(6-7) wherein he has raised construction and a boundary. It was also claimed that this land has a residential house, submersible pump and laid foundation to raise marriage palaces etc. It was also claimed that he is in exclusive possession of this land. It was also the case of the petitioner that the property mentioned in the headnote (c) has been actually partitioned and the area measuring 2 kanals 2 marlas in village Chak Hakim fell to the share of the defendant-petitioner which he converted into a passage and connected the same with the property of village Mehat. The property underneath the passage was claimed to be exclusive of the defendant-petitioner to which the plaintiff-respondent had no concern.

6. It was also pleaded that the plaintiff-respondent has been allotted his share towards southern side along with brother Hardip Singh which area is more valuable. It was further claimed that the Court had no jurisdiction to try the present. It was also pleaded that the petitioner was not raisi