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Nazar Mohd. Khan v. Arshad Ali Khan And Others .
Factual and Procedural Background
The petitioner claimed to be a co-owner with the respondents of a land measuring 9 Kanals 7 Marlas and sought an ad-interim injunction restraining the respondents from raising any construction until the joint holding was partitioned. The respondents contested this claim, asserting that the land had been partitioned approximately 22 years prior, a fact allegedly known to the petitioner who had himself raised construction on his share. The trial Court dismissed the petitioner's application for an ad-interim stay, finding no prima facie case or balance of convenience in the petitioner's favor. The Additional District Judge affirmed this dismissal on appeal. The petitioner then filed a revision petition challenging these orders.
Legal Issues Presented
- Whether the petitioner, claiming to be a co-owner, is entitled to an ad-interim injunction restraining construction on the land before partition by metes and bounds.
- Whether the land in question remains jointly held or has already been partitioned, affecting the petitioner's entitlement to relief.
Arguments of the Parties
Petitioner's Arguments
- The courts below erred in law by not properly construing the pleadings, leading to incorrect dismissal of the petitioner's application.
- The land remains joint property, and as a co-sharer, the petitioner cannot be restrained from preventing construction until the land is partitioned by metes and bounds.
- Reliance on the decisions in Om Parkash v. Chhaju Ram and Daulat Ram v. Dalip Singh to support the entitlement to an injunction.
Respondents' Arguments
- The suit land had already been partitioned, evidenced by a sanad taxim dated 20.8.1992 and an annexed site plan, which were placed on record as annexures R-2 and R-3.
- The petitioner's assertion of joint ownership is factually incorrect, making the suit mala fide and aimed at harassment.
- The revision petition should be dismissed on the ground that no joint holding exists.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Om Parkash v. Chhaju Ram, AIR 1992 Punjab and Haryana 219 | Establishes the principle that a co-sharer cannot raise construction until partition by metes and bounds. | The Court admitted the revision petition in view of this decision and granted ad-interim stay. |
| Daulat Ram v. Dalip Singh, 1990 The Punjab Legal Reports and Statutes 488 | Supports the principle regarding rights of co-sharers and injunctions against construction before partition. | Referenced by the petitioner to substantiate the claim for injunction; considered by the Court in assessing the legal position. |
Court's Reasoning and Analysis
The Court acknowledged the established legal principle that a co-sharer has no right to raise construction on jointly held land until it is partitioned by metes and bounds, and that other co-sharers may seek injunctions to restrain such construction. The Court noted that the respondents produced documents (sanad taxim and site plan) during the pendency of the suit, which prima facie supported their claim that the land had already been partitioned. These documents had not been considered by the lower Courts, possibly because they were not brought to their notice. Given that the parties had nearly completed their evidence and the case was ready for final disposal, the Court found it appropriate to maintain the status quo as it exists on the ground. The Court directed the trial Court to expedite the final decision on the pending suit.
Holding and Implications
The Court disposed of the revision petition by granting ad-interim stay and directing maintenance of the status quo regarding construction on the land.
The direct effect is that no construction shall proceed until the trial Court finally disposes of the suit. No new precedent was established, and the Court emphasized expeditious disposal of the pending suit based on the evidence and documents now on record.
N.K Kapoor, J. — This revision petition is against the order of the Additional District Judge dated 10.8.1992 affirming in appeal the order passed by the trial Court, dismissing the petitioner's application for grant of ad-interim stay in terms of Order 30 Rules 1 and 2 CPC.
2. Petitioner claimed himself to be a co-owner with the respondents in respect of land measuring 9 Kanals 7 marlas as detailed in the plaint and so sought a restrain order against the respondents not to raise any construction till the joint holding is partitioned as it would otherwise become difficult to demolish the raised construction.
3. This claim was resisted by the respondent on the ground that the suit land already stands partitioned some 22 years back which fact is well known to the petitioner who in fact has raised construction upon the area which falls to his share. So, the present suit is mala fide and filed with a view to harass the respondents-the defendants.
4. On consideration of the matter, trial Court come to the conclusion that the petitioner has failed to make out a prima facie case and that balance of convenience is also not in his favour and so declined to grant the ad-interim injunction as prayed for.
5. The appellate Court on reconsidering the matter also found no ground to vary or reverse the order of the trial Court and so dismissed the appeal.
6. The revision petition was admitted in view of the decision of this Court in Om Parkash…Petitioner, v. Chhaju Ram…., AIR 1992 Punjab and Haryana 219 : 1992 (1) RRR 474 (P&H) and ad interim stay as prayed for granted.
7. The learned counsel for the petitioner has urged that the Courts below in fact have erred in law in not properly construing the pleadings of the parties which has led to the passing of the impugned orders. According to the counsel, land is still joint and so a co-sharer even when he is in exclusive possession of the particular piece of land cannot raise any construction till it is partitioned by metes and bounds. Reference was made to the decisions of this Court in Om Parkash's case (supra) and Daulat Ram v. Dalip Singh, 1990 The Punjab Legal Reports and Statutes 488.
8. Learned counsel for the respondents on the other hand argued that the assertion made by the petitioner that land is joint is factually incorrect. In fact suit land stands partitioned as is reflected in the copy of sanad taxim dated 20.8.1992 and the site plan annexed thereto, which documents have already been placed on records and marked as annexures R-2 and R-3 before this Court. Thus, there is no joint holding between the parties and on this ground alone the revision petition deserves to be dismissed.
9. I have heard the learned counsel for the parties, perused the orders passed by the Courts below as well as the other documents referred to by the respective counsel. There is no denying the fact that a co-sharer has no right to raise construction till the land is partitioned by metes and bounds and so even when one of the co-sharers is in exclusive possession of a particular piece of land any other person can seek an Injunction restraining the others from raising construction till the matter is finally decided. In the context of the present case, the documents placed on record by the respondents have come into existence during the pendency of the suit. No doubt, prima facie, these documents lend support to the case of the respondents that the land has already been partitioned but these two documents have not been referred to by both the Courts. Perhaps these documents were not brought to the notice of the Courts below. It has also been brought to my notice that parties have almost led their evidence and case is ready for final disposal. This being so, I find it appropriate that parties maintain status quo as it exists at the spot today and further direct the trial Court to decide the pending suit expeditiously,
Parties to appeal before the trial Court on 15.12.1995
Revision petition disposed of.
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