Dismissed

Om Parkash & Ors. v. Gurcharan Singh & Anr.

Punjab & Haryana HC6 Nov 2012CR/6561/2012

Case brief

AI extract

What is this about?

In this revision petition, the defendants sought to quash a temporary injunction granted to plaintiff co-shares against construction by other co-shares. The High Court found that without prima facie proof of exclusive possession via oral partition, the Bachan Singh ratio did not apply, and the lower courts correctly upheld the injunction.

What did the court decide?

Revision petition dismissed; temporary injunction in favor of plaintiffs upheld; no costs awarded.

Om Parkash & Ors. Vs Gurcharan Singh & Anr. — Property and Title | Punjab & Haryana HC (2012)

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Civil Revision No.6561 of 2012(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.6561 of 2012(O&M) DATE OF DECISION : November 06, 2012

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Om Parkash and others

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...Petitioners

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Versus

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Gurcharan Singh another

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...Respondents

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CORAM: HON’BLE MR.JUSTICE M.JEYAPAUL

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Present Mr.Anil Kshetarpal, Advocate for the petitioners.

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M.JEYAPAUL, J.

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The defendants aggrieved by the order of interim injunction granted in favour of the plaintiffs by the trial Court and upheld by the First Appellate Court have preferred the present Revision.

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The plaintiffs have contended that they have filed a suit for permanent injunction seeking to restrain the defendants from raising any sort of construction over specific portion of the suit property. The plaintiffs purchased 201/425 shares out of the suit land from Shavi Kumar vide registered sale deed dated 29.05.2007. The possession of the suit land was also handed over to them at the spot. It is alleged that the 1^st defendant in collusion with the defendants no.2 to 5 are making an attempt to put up construction over specific

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Civil Revision No.6561 of 2012(O&M) 2

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portion of the suit land. Having thus alleged, the plaintiffs have prayed for temporary injunction as against the defendants from raising construction and changing the existing nature of the suit property.

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The defendants have contended in their reply that though the plaintiffs are co-sharers to the extent of 201/425 shares, they were not in possession of the suit property. The defendants are in possession of Khasra nos. 12/23/1, 24/1/1 and 25/1/1. It is further alleged that the defendants and the earlier co-sharers had orally partitioned the suit property. Alleging that the plaintiffs cannot seek injunction against the defendants being co-sharers, the have prayed for dismissal of the application for temporary injunction.

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The Courts below having found that the defendants failed to show prima facie that they were in exclusive possession of any portion of the common property by virtue of an oral agreement granted the relief of temporary injunction to the plaintiffs.

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The learned counsel appearing for the Revision petitioners-defendants in the light of the decision of Division Bench of this Court in Bachan Singh versus Swaran Singh 2000 (3) R.C.R. (Civil) 70 would submit that the co-sharers cannot seek an order of injunction restraining the other co-sharers from putting up construction. It has been shown before the trial Court that there was an oral partition and pursuant to which the defendants are in exclusive possession of the property fell to their share. Therefore, it is his submission that the plaintiffs are not entitled to an order of injunction.

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Civil Revision No.6561 of 2012(O&M)

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There is no evidence available on record to establish that the plaintiffs and the defendants have been in exclusive possession and enjoyment of their respective shares in the suit property. The defendants also have not substantiated their contention that they have been in exclusive possession of the suit property by virtue of the oral partition that took place between the parties.

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It is to be noted that the plaintiffs have come out with an allegation that the defendants have started putting up construction in the prime portion of the property. If such a construction is permitted in the prime portion of the suit property, before ever a partition took place between the parties, it would be detrimental to the interest of the plaintiff.

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The fact that the plaintiffs purchased 201/425 shares in the suit property and thus the plaintiffs have become owner thereof was not disputed by the defendants. Neither of the parties could establish prima facie their exclusive possession of the suit property. The defendants also could not establish that they have in exclusive possession of a specific portion of the suit property. The ratio laid down by the Division Bench of this Court ini Bachan Singh's case (supra) would apply only in a case where the defendants prima facie establish that they are in exclusive possession of a specified portion of the suit property.

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Further, the construction that is made by the defendants in the prime portion of the suit property would be definitely detrimental to the interest of the plaintiff.

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In my view, both the Courts have rightly passed an order

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Civil Revision No.6561 of 2012(O&M)

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granting temporary injunction in favour of the plaintiffs. I do not find any error in the order passed by the Courts below.

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Therefore, the Revision fails and it stands dismissed. No

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costs.

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(M.JEYAPAUL) JUDGE

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November 06, 2012

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p.singh

Om Parkash & Ors. v. Gurcharan Singh & Anr.

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Om Parkash & Ors. v. Gurcharan Singh & Anr.

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