IMPORTANT POINT
Co-sharers in joint property can alienate their shares and raise constructions on their portions, subject to partition adjustments; injunctions against such actions are not maintainable.

JUDGMENT :

(Ritu Tagore, J.) :

This regular second appeal is directed against judgment and decree dated 07.01.1998, whereby the learned First Appellate Court reversed the judgment and decree of learned trial Court dated 15.03.1996 by allowing the appeal and dismissing the suit for permanent injunction filed by present appellants/plaintiffs against the respondent-defendant.

2. For the sake of convenience, parties to the lis hereinafter, shall be referred to by their original status in the suit before the trial Court.

3. Brief facts of the case are that the plaintiffs instituted a suit seeking a decree of permanent injunction, restraining the defendant from raising any construction on a specific portion of land bearing khewat No.87, khatuni No.111, khasra No.506(6-13), situated in the area of village Darapur, Tehsil Phillaur, and from alienating the same without obtaining a partition. The plaintiffs assert that suit land is still joint and has not been formally partitioned between the parties. However, the defendant has threatened to raise construction forcibly on specific portion of the suit land and alienate that specific portion. Despite being requested to desist, the defendant has failed to listen, thereby necessitating to file the suit.

4. Upon receipt of the notice of the suit, defendant appeared and filed the written statement, and raised preliminary objections of locus standi, estopple, maintainability of the suit etc. On merits, the defendant asserted that all the co-sharers are in separate possession of the land and have raised construction on the same. He is also in separate possession of the land and has constructed a haveli on it and a boundary wall. It is averred that, portion of the joint land with him is ghair mumkin abadi and he has been in possession of the same for the last 15-20 years. On the above averments, pleaded for the dismissal of the suit.

5. Since parties were at variance, learned trial Court framed following issues:-

1. Whether the plaintiffs are entitled to permanent injunction as prayed for? OPP

2. Whether the plaintiffs have no locus standi to file the present suit? OPD

3. Whether the suit is not maintainable in the present form? OPD

4. Relief.

6. The parties led the evidence, as detailed in the judgment of learned trial Court. Upon assessment and appreciation of the evidence, the learned trial Court decreed the suit of the -plaintiffs, concluding that suit land is joint and defendant has no right to raise construction on a specific portion of the joint land, neither has right to alienate any specific parcel of the suit land until same is partitioned.

7. The defendant preferred the first appeal against the judgment and decree of learned trial Court. Upon reappraisal of the evidence, the learned First Appellate Court concluded that learned trial Court failed to properly appreciate the factual and legal aspects of the controversy on hand and materially erred in decreeing a suit for injunction; where as a suit for permanent injunction restraining a co-sharer from selling his share in the joint land is not maintainable. Further, co-sharers in possession of separate parcel of land by consent implied or express of other co-share has right to enjoy the separate possession till their shares are separated by effecting partition. As a result, First Appellate Court set aside the findings of learned trial Court, accepted the appeal and dismissed the suit.

8. Being aggrieved by the judgment of reversal, the appellants-plaintiffs filed the instant appeal.

9. Learned Counsel for the appellants-plaintiff contends that learned Appellate Court fell in error in upsetting a well reasoned judgment of the learned trial Court based on sound appreciation of facts and law. Learned counsel contends that learned Appellate Court returned a specific finding of a fact that, suit land is joint. In view thereof the defendant, a co sharer, has no right to sell specific portion of the joint land or raise construction thereon. It is contended