Jainpal v. Kuldeep And Others








 

 

 















 





   

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Relies upon Nazar Mohd. Khan vs. Arshad Ali Khan and others 1996 P.L.J. 33 to submit that a co-sharer can be restrained from changing the nature of joint property and from raising construction thereupon.

Notice of motion for 22.02.2022.

Meanwhile, defendants-respondents are restrained from raising any construction over part of the joint land, which is in their possession."

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15. On a consideration of the judicial pronouncements on the subject, we are of the opinion that :

(i) a co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another coowner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of co-owner out of possession.

ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.

(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.

(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest.

In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a coowner.

16. In this view of the matter, we are unable to agree to the propositions laid down by the learned single Judge of this Court in Nazar Mohd. Khan v. Arshad Ali Khan and others (supra) wherein his Lordship broadly stated that there is no denying the fact that a cosharer has no right to raise construction until 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 injunction restraining the other co-owner from raising construction. We accordingly overrule the said decision of the learned single Judge of this Court and also the decisions in Mst. Parsini alias Mano v. Mahan Singh, 1982 P.L.J. 280, Om Parkash and others v. Chhaju Ram, 1992 P.L.J. 546 and Daulat Ram v. Dalip Singh, 1989 R.L.R. 523."

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