Allowed

Mahesh Kumar and Others v. Krishan Kumar and Others

Punjab & Haryana HC4 Sept 2009RSA/3577/2006

Case brief

AI extract

What is this about?

This common order disposed of two appeals concerning whether a co-sharer could be restrained from raising construction on joint property. The court allowed the appeals, setting aside lower orders, permitting construction on the condition that it raises no equity or claim for compensation during partition.

What did the court decide?

Appeals allowed; lower orders set aside; appellants permitted to construct subject to no equity or compensation claims at partition.

Mahesh Kumar and Others Vs Krishan Kumar and Others — Partition | Punjab & Haryana HC (2009)

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RSA No.3577 of 2006(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Date of Decision: September 04, 2009

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1. RSA No. 3577 of 2006 O&M)

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Mahesh Kumar and others

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...... Appellants

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Versus

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Krishan Kumar and another

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...... Respondents

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2. RSA No.4249 of 2006 (O&M) Randhir Singh

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...... Appellant

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Versus

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Krishan Kumar and others

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.......Respondents

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Coram: Hon'ble Mr. Justice Ajay Tewari

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Present: Mr.Sanjay Mittal, Advocate for the appellants.

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Mr. Kulbhushan Sharma, Advocate for respondent No.1.

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Whether Reporters of local papers may be allowed to see the judgment?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Ajay Tewari, J.

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This order shall dispose of the above mentioned two appeals

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bearing RSA Nos. 3577 of 2006 and 4249 of 2006. Since common questions of law and facts are involved, they are being disposed of by a common order. The facts are being taken from RSA No. 3577 of 2006.

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RSA No.3577 of 2006(O&M)

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This appeal has been filed against the judgment of the learned Lower Appellate court reversing that of the trial Court thereby decreeing the suit filed by the respondent for restraining the appellants from raising any construction over the joint property.

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The following question has been proposed:-

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“Whether a co-sharer can injunct another co-sharer from raising construction on the property which is yet joint?”

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Both the counsel have relied upon a decision of this Court in

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Bachan Singh v. Swaran Singh reported as 2003(3) RCR 70 wherein a Division Bench of this Court discussed the entire gamut of the interplay of rights between the co-sharers. Learned counsel for the appellant has relied upon that portion of the judgment wherein it is stated that mere making of construction does not amount to ouster while learned counsel for the respondent has relied upon that portion where it has been held that an act of a co-sharer who may be in possession if detrimental to the interest of the other co-sharer can be injuncted from carrying out that act. It is not disputed that the land on which the appellant is seeking to raise construction is not beyond his share. Learned counsel for the respondent has argued that the key words used in this judgment are 'exclusive possession' and that in this case the appellant has nowhere been able to prove his exclusive possession. In this connection the plaintiff while appearing as his own witness admitted that the appellants are raising construction on the plot sold to them.

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In my opinion this is a clear admission that the appellants are in possession . Learned counsel for the respondents has further argued that by raising construction their interest would be adversely affected because in any partition proceedings this construction would be deemed to raise an

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RSA No.3577 of 2006(O&M) 3 equity in favour of the appellants. Learned counsel for the appellants has very fairly conceded that he would have no objection if it is recorded that any construction which they may make would raise no equity in their favour at the time when partition of the property is sought and that in case the property is allocated to any other co-sharer, the appellants will not claim any amount of money for the construction they raise.

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In this view of the matter it cannot be held that the construction would in any way be detrimental to the interest of other co-sharer.

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Consequently these appeals are allowed. The orders of the Courts below are set aside and this appeal is allowed subject to the concession of learned counsel for the appellant that neither would the act of construction raise any equity in favour of the appellants, nor the appellants would seek any compensation at the time of partition.

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Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of.

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(AJAY TEWARI) JUDGE

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September 04, 2009 sunita

Mahesh Kumar and Others v. Krishan Kumar and Others

Case brief

What is this about?

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Mahesh Kumar and Others v. Krishan Kumar and Others

Case brief

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