Himachal Pradesh High Court– While deciding an appeal as to whether the suit land is partitioned or is still un-partitioned and in joint ownership of the parties to the suit and construction carried out by the defendant is justified or not, a bench of Dharam Chand Chaudhary J, held that the defendant cannot be permitted to go ahead with construction in violation of the rights and interest of other co-sharers as he is not in exclusive possession of the vacant suit land. The Court stated that the petitioners have successfully pleaded and proved the interference over the suit land by the defendant and threat to their rights and interest caused by such interference. The Court also noted that a co-sharer has every right, title and interest in the joint property even if not in actual and physical possession thereof. The possession of one co-sharer in joint property amounts to possession of all even if the other co-sharers are not in actual and physical possession thereof. Even a co-sharer in exclusive possession of any portion of joint property cannot be permitted to raise construction and to change the nature thereof because every other co-sharer is joint owner in respect of every inch.
In the instant case the suit land is a big plot and is recorded as ‘Ger Mumkin Abadi’ in the Jamabandi. According to the entries the parties are joint owner-in-possession of the suit land to the extent of their respective shares as reflected in this document. Both the parties have residential houses already constructed over a portion and the defendant started construction over the vacant land which according to him stands partitioned in disregard of the ad interim injunction passed by the trial court. The plea of the plaintiffs is that the land is still un-partitioned and in joint ownership of the parties to the suit. The lower appellate court in the appeal filed by the defendant concluded that the suit land stands partitioned amongst the co-sharers.
The Court quashed and set aside the decree passed by the lower appellate court and further stated that the oral as well as documentary evidence produced by the parties has not been appreciated in its right perspective and rather misconstrued and misinterpreted as the nature of the suit land being Abadi could not have been partitioned. Joginder Singh v, Suresh Kumar, 2015 SCC OnLine HP 864, decided on 24.02.2015