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Case Title:-Vijay Singh S/o Charan Singh versus Surjit Singh

Case No:-OWP No. 1425/2018 CM No. 9303/2021 & IA No. 01/2018 c/w CPOWP No. 68/2019

Decided on:28-02-2024

Quorum: HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE

Facts of the case:-

The petitioner-plaintiff filed a declaration suit, alleging that the defendants and the plaintiff are joint owners and that the plaintiff is in possession of land that includes Survey No. 167 min, which is 43 kanals and 18 marlas. The 26 kanals and 7 marlas of Survey No. 168 are located in the Village Raipur, Koller Tehsil, and District Samba. The property is unpartitioned and may be used by anyone until it is divided. Additionally, a permanent prohibitory injunction prohibits Respondents, Defendant Nos. 1 through 5, from forcibly and illegally forcing the plaintiff to leave the area by building shops and sheds on the portion of land that borders the road in order to preserve the value of the remaining land. In addition, it is alleged that defendants Nos. 6 through 9 are entitled to the in question property and have simply been presented as proforma defendants. The plaintiff’s lawsuit is predicated on revenue. Document that is attached to the plaint. The appellate court’s decision to permit the defendants to raise construction in their own portion, despite their long-standing exclusive possession of it, has angered the petitioner-plaintiff. The directive, it should be noted that although the court permitted the defendants to present construction, it also ordered that, should the plaintiff win the ultimate decree, the defendants must remove all of their work and that they cannot argue for reimbursement for any costs associated with it. Respondents Nos. 1 through 4 have filed objections to the petition, citing their affirmative position in the written statement as support.

Petitioner Contentions:-

The main argument of the counsel for the petitioner-plaintiff is that in case the defendants are allowed to raise construction, the same shall change the nature of the land and the same could not be allowed when the suit property is yet to be partitioned. Further the proceedings pending before the revenue courts shall get effected in view of the order passed by the appellate court. The other side has contended that the plaintiff is himself party to the agreement and that partition has taken place of 18 Kanals of land. The respondents also referred to the report of the Tehsildar wherein he had mentioned of the oral partition having taken place between the parties. The plaintiff has pleaded that the suit property is not partitioned and therefore, any interference in the suit property in any manner may be by way of construction only shall change the nature of the suit and cause irreparable loss to the plaintiff. The property till partitioned belongs to all the joint holders and have right to enjoy the same. The value of the property cannot be allowed to be diminished by any party to the suit by raising construction

Respondent Contentions:-

The defendants have filed the written statement wherein the defendants have stated that an agreement and adjustment of their portion of land in certain khasra numbers was made and the agreement was reduced into writing and the defendant Nos. 1 to 4 also put their signatures on the same. The front portion is in possession of defendant Nos. 1 to 4 and had a pathway for egress and outgress for going towards the land of the plaintiff and defendant No.5. In fact the shares of the parties have been ascertained in the revenue record. As the plaintiff and defendant No.5 got their piece of land by way of mutual agreement, therefore, there is no question of seeking declaration in the suit. The defendant No.5 is the real brother of the plaintiff and had already disposed of the land measuring 18 Kanals 10 marlas to one Charan Singh Choudhary and the defendant Nos. 1 to 4 have already raised construction about 20 years ago of shops, houses etc. to which the plaintiff never raised any objection. The case of the defendants on the other hand is that the plaintiff is himself signatory to an agreement executed in the year 2010 and further the brother of the plaintiff has disposed of 18 kanals of land which itself shows that the partition has taken place. The mutual division has already taken place as per the report of the Tehsildar dated 12.12.2017 which was made on the directions of the appellate court dated 05.10.2017.

Court Analysis and Judgement:-

The court noted that mere assertion in the suit that the property is un-partitioned and therefore the defendant cannot raise construction in any portion of the land is without any basis. The defendants are in possession of certain piece of property exclusively and to the exclusion of the plaintiff is prima facie made out from the fact that the plaintiff does not aver in the plaint that he is in possession of the property where the defendants intend to raise the construction. The agreement of 2010 also prima facie reveals the participation of the plaintiff in it and that further 18 kanals of land already Stands sold out to one Charan Singh by the brother of the plaintiff. The oral partition report given by the Tehsildar though may not be final word Of partition but it does at this juncture favour the assertion of the defendants that the oral partition had already taken place and the parties are in possession of their share. The appellate court while modifying the status quo order of the trial court and allowing the defendant to raise construction has adequately passed directions keeping the interest of the parties including the plaintiff. The appellate court has even directed the defendants not to raise the construction on a pathway also as is mentioned In the order which should satisfy the petitioner herein. The court finds that there is no exceptional circumstance which may require interference by this court in the order passed by the appellate court. However, in addition to the directions passed by the appellate court in the appeal it is also directed that the defendants shall not raise any construction beyond the land which is in their possession or dispose of any portion of suit property during the pendency of the suit. The trial court while dealing with the suit shall not get influenced by any observation made by this court or the appellate court. The connected applications as well as the contempt petition also stand disposed of.

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Judgement Analysis Written by – K.Immey Grace

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