In joint family property disputes, co-sharers cannot commence construction without prior partition or demarcation to avoid future complications.

ORDER :

1. The present miscellaneous petition under Article 227 of the Constitution of India is taking exception to the order dated 11.04.2023 (Annexure P/1) passed by the Additional District Judge, Lahar, District Bhind, whereby the miscellaneous appeal preferred under Order 43 Rule 1 CPC by respondent has been allowed and order dated 02.03.2023 passed by the trial Court whereby an application of petitioners/plaintiffs under Order 39 Rule 1 and 2 CPC was allowed, has been set aside.

2. As pleaded and submitted, a suit for permanent injunction under Section 38 of the Specific Relief Act has been preferred by the petitioners/plaintiffs on the basis of submissions that out of the joint family property situated as per the particulars given in the plaint, part of it was purchased by the respondent/defendant from the plaintiffs. They intended to construct over the land in question and therefore, the suit was filed by the plaintiffs to restrain the defendant from construction on the ground that suit property is a joint family property and unless partition is made in metes and bounds specifying the area of each co-sharers, construction could not have been carried out.

3. Alongwith plaint, an application under Order 39 Rule 1 and 2 CPC was preferred seeking temporary injunction. The First Civil Judge, Junior Division Class – I, Lahar, District Bhind passed the order and allowed the application for temporary injunction on the ground that the suit property has not been partitioned and no demarcation has been made, therefore it is difficult to decipher the exact area of each co- sharers on the basis of four corners (prqZlhek) and since demarcated area has not been ascertained therefore, construction by defendant would alter the status quo. Therefore, temporary injunction was granted.

4. The appellate Court in Miscellaneous Appeal reversed the findings on the basis of judgment relied upon in the case of Tanusree Basu & Others vs. Ishani Prasad Basu & Others, 2008 (4) SCC 791 therefore the petitioners/plaintiffs have preferred the petition under Article 227 of the Constitution of India.

5. It is the submission of learned counsel for the petitioners/plaintiffs that unless land is demarcated or partitioned in metes and bounds, defendant despite having right to purchase the property, co-sharers does not have right prima facie to proceed with the construction without demarcation or partition. He relied upon the judgment of the Apex Court in the case of Gajara Vishnu Gosavi Vs. Prakash Nanasaheb Kamble & Others, 2009 (10) SCC 654 and submits that the defendant has no right to proceed with the construction unless property is partitioned or demarcated.

6. Learned counsel for the respondent opposed the prayer and supported the impugned order on the ground that he purchased the land from one of the co-sharers and other vendees have also proceeded with the construction without any interruption by the co-sharers. Therefore, he prayed for dismissal of the petition.

7. Heard the learned counsel for the parties and perused the documents appended thereto.

8. This is a case where subsequent purchaser from the co-sharers of a joint family property proceeded with the construction of the house without land being partitioned amongst the co-sharers or divided through settlement. It further appears that no demarcation has taken place over the land in question. In absence of partition or demarcation, it would be difficult for the co-sharers to ascertain the exact location of the suit property and this may further complicate the situation in future till partition takes place. Therefore, contention as raised by