The Jammu & Kashmir and Ladakh High Court ascertained whether one co-sharer can stop another co-sharer from raising construction on the joint property.
The High Court observed that when a co-sharer is in exclusive possession of a joint holding, he cannot be restrained from raising construction on the said portion. Therefore, in the present case, since the Defendants were in possession of the portion of the suit property, they cannot be restrained from raising construction on the said portion.
Brief Facts:
The Petitioner has challenged the order of Learned Additional District Judge (hereinafter referred to as the “Appellate Court”) vide which Respondents (Defendants) were allowed to raise construction over the suit land subject to an undertaking that the construction will be dismantled if Petitioner (Plaintiff) succeeds in the suit and Defendants were also directed to not create any third-party interest in the suit property.
Background of the Case:
Plaintiff filed a suit seeking a decree of partition, a declaration about a property, and an injunction restraining the Defendants from interfering in the possession of the property which is Plaintiff’s share.
The case of the Plaintiff was that the suit property was inherited by both Plaintiff and Defendants. It has been submitted that some portion of the land which exclusively belongs to the Plaintiff is in the possession of the contesting Defendants. The Defendants have been trying to construct on the suit land and also creating third-party interest.
The Defendants argued that Plaintiff is not entitled to the portion of land that is claimed by Plaintiff.
The Learned Trial Court directed parties to maintain the status quo of the land till the final adjudication of the dispute. The said order was challenged by the Defendants in the Appellate Court. The Defendants were allowed to raise construction over the suit land subject to an undertaking that the construction will be dismantled if Petitioner (Plaintiff) succeeds in the suit and Defendants were also directed to not create any third party interest in the suit property.
Contentions of the Plaintiff:
The said order of the Appellate Court was challenged by the Plaintiff on the ground that Defendants nowhere pleaded that they had raised construction of the house to the slab level and despite this, the Appellate Court concluded that construction is completed till a slab level. It was argued that the suit property is a joint property and is yet to be partitioned and hence, Appellate Court could not have allowed construction
Observations of the Court:
It was observed that the parties are co-sharer of the suit property as both inherited the property from a common ancestor. The main issue to be ascertained was whether one co-sharer can stop another co-sharer from raising construction on the joint property.
The High Court observed that when a co-sharer is in exclusive possession of a joint holding, he cannot be restrained from raising construction on the said portion. Therefore, in the present case, since the Defendants were in possession of the portion of the suit property, they cannot be restrained from raising construction on the said portion.
The decision of the Court:
Based on the above-mentioned reasons, the Bench did not find any illegality in the order passed by the Appellate Court and accordingly dismissed the Petition.
Case Title: MST. Zaiba v. Ghulam Ahmad Zargar & Ors.
Coram: Hon’ble Mr. Justice Sanjay Dhar
Case No: CM(M) No. 292/2022
Advocate for Petitioner: Adv. Mr. Qazi Ayaz
Advocate for Respondent: Adv. Mr. Sheikh Hilal
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