Darshan Singh and Another vs Amar Singh and Another

L.N. Mittal, J.—Defendants are in second appeal having lost in both the courts below.

Suit was filed by respondents Amar Singh (since deceased and represented by his legal representatives) and his son Mohinder Singh against the appellants. Parties are co-sharers in the suit land which is still joint and has not yet been finally partitioned. The plaintiffs sought injunction restraining the defendants from alienating specific portion of the suit property and from raising construction over specific portion of the suit property without getting the land partitioned.

The defendants admitted that the land is still joint. However, the defendants alleged that they have right to raise construction over the property which is in their exclusive possession out of the joint land.

Learned Civil Judge (Junior Division), Phillaur vide judgment and decree dated 16.2.2006 partly decreed the suit restraining the defendants from raising any further construction over specific portion of the suit property otherwise than in due course of law without getting it partitioned. Suit regarding remaining relief was dismissed. First appeal preferred by the defendants stands dismissed by learned Additional District Judge, Jalandhar vide judgment and decree dated 14.3.2007. However, the defendants were permitted to carry out minor repairs of the already existing structure, without having effect on the partition proceedings. Feeling aggrieved, the defendants have preferred the instant second appeal.

I have heard learned Counsel for the parties and perused the case file.

Pursuant to order of the preceding date, appellant No. 2 Gurmit Singh and respondent No. 2 Mohinder singh (who is also one of the LRs of respondent No. 1) are present in person and have also been heard.

There is report of Local Commissioner on the file of the trial court. It is admitted case of the parties that plaintiffs have constructed their house depicted in yellow colour in the site plan prepared by the Local Commissioner whereas defendants have constructed their house depicted in blue colour in the said site plan. Some other co-sharer has also constructed house depicted by letters ABDC in the said site plan.

Learned Counsel for the appellants contended that the defendants want to raise further construction only in the area in which their house is already existing including some vacant portion lying therein. Learned Counsel for the respondents, however, expressed apprehension that the defendants/appellants under the garb of construction want to encroach upon the passage lying in front of their house. However, learned Counsel for the appellants after seeking instructions from appellant No. 2 states that the appellants shall not raise any construction on the said passage which is two karams wide. Counsel for the respondents after seeking instructions from respondent No. 2 is satisfied with the said undertaking.

In view of the aforesaid, since plaintiffs have also constructed their house and defendants have also constructed their house in parts of the joint land, the defendants should be permitted to raise further construction in the area of their house which is in their possession including some vacant space lying therein but the defendants shall not encroach upon any part of the two karams wide passage lying in front of their house.

For the reasons aforesaid, the instant second appeal is allowed partly. Judgments and decrees of both the courts below are modified and in modification thereof, appellants are permitted to raise further construction within the area of their existing house including some vacant portion as depicted in the site plan prepared by the Local Commissioner. However, defendants/appellants shall not raise any construction over the passage lying in front of their house or any other passage nor the appellants shall raise any construction on the religious structure depicted in green colour in the site plan prepared by the Local Commissioner.