IMPORTANT POINT
Co-owners cannot seek injunction against each other without proof of exclusive possession or detrimental acts; mere construction does not constitute ouster.

JUDGMENT :

SUKHVINDER KAUR, J.

1. By way of present revision petition, the petitioners have challenged order dated 29.07.2023 (Annexure P3) passed by learned trial Court, vide which application filed by the petitioners under Order 39 Rules 1 and 2 read with Section 151 of CPC was dismissed and further the petitioners have challenged order dated 12.02.2024 (Annexure P6) passed by the First Appellate Court, vide which the appeal preferred by the petitioners against order dated 29.07.2023 has been dismissed.

2. The brief facts relevant for the adjudication of the present revision petition are that the petitioners and respondents are co-sharers in the suit land (ancestral) from their forefathers and till date no partition has been effected orally as well as by any Court of law. The father of petitioner No. 1 and husband of petitioner No. 2 had died since long and since then, the respondents are continuously trying to grab the land of the petitioners, as petitioner No. 2 is having only two daughters.

3. The plaintiffs/petitioners filed a suit for permanent injunction before the trial Court for restraining the defendants from claiming exclusive ownership and possession on any specific killa number, from raising any kind of construction and changing nature of specific killa numbers, from taking forcible or illegal possession of any specific kill numbers and from alienating, transferring, mortgaging, gifting, leasing out and parting with the possession of any specific killa numbers above their actual shares in the suit land.

4. The petitioners had also filed an application under Order 39 Rules 1 and 2 CPC alongwith the suit and notice of the suit as well as the said application was issued to the respondents/defendants. The said application filed by the petitioners under Order 39 rules 1 and 2 CPC was dismissed by the trial Court vide order dated 29.07.2023.

5. Thereafter, the petitioners approached this Court by filing CR-4890-2023, against the abovesaid order. Notice of motion was issued by this Court and parties were directed to maintain status quo vide order dated 29.08.2023. Thereafter, vide order dated 31.10.2023, the said petition was dismissed as withdrawn with liberty to file an appeal before the learned District Judge, Hissar, as per the provision of Order 43 of CPC.

6. Then the petitioner filed a civil miscellaneous appeal before the learned Appellate Court, Hissar by challenging the aforesaid order dated 29.07.2023, which was dismissed vide order dated 12.02.2024. Hence the petitioners knocked the doors of this Court by way of filing the present revision petition.

7. Learned counsel for the petitioners has contended that the respondents have mislead the Courts below by saying that the partition regarding the suit land had already been final, but no documentary proof regarding the same has been produced on record. It has also not been considered that the petitioners have also challenged the ‘Naksha Kha’ before the revenue authorities. The Appellate court has wrongly observed that some arrangements have been done between the parties. The Courts below have failed to appreciate this fact that the suit land has not been partitioned till now between the parties and both the parties have their right on every inch of land and without any partition nobody can raise construction on the suit land. He has submitted that the petitioners have proved that both the parties are having their respective shares in the suit land, which is not partitioned till now and the partition proceedings are still pending before the Revenue Court. The respondents want to grab the valuable, fertile land from the suit land and have started raising construction on the suit land adjoining to the road/rasta and they want to give share of the petitioners at the backside. He has further contended that though the lower Court has considered the parties to be co-sharers in joint possession, but even then the relief of injunction has been denied to the petitioners and has co