Jai Narain vs Bhim Singh

Rakesh Kumar Jain, J.—The plaintiff is aggrieved against the orders of the Courts below by which his application for temporary injunction has been declined.

Counsel for the petitioner has submitted that he is a co-sharer in Khewat No. 2 Khatauni No. 6 wherein Rect. No. 29 Killa No. 26/1 (5-12) is Gair Mumkin Well. He had earlier filed a suit for partition and also filed an application for temporary injunction. He lost before both the Courts below on the ground that the Civil Court had no jurisdiction to partition the agricultural land as the remedy lies before the revenue authorities in the Punjab Land Revenue Act, 1887. The petitioner then filed the present suit for permanent injunction in order to restrain the defendants from raising any kind of construction on Khasra No. 29//26/1. The Courts below have dismissed the suit on the ground that the petitioner''s earlier suit in which he had also filed application for temporary injunction was dismissed, therefore, he cannot maintain the application for stay in respect of the same property.

Counsel for the petitioner has submitted that no doubt that earlier application for temporary injunction was dismissed, but it was because of lack of jurisdiction of the Court. However, the fact that he is a co-sharer in the Khewat along with the respondents entitles him to file the present application because the nature of the suit property, without partition, is being changed to his detriment by the respondents.

On the other hand, learned counsel for the respondents has vehemently argued that there is no error in the orders of the Courts below as the plaintiff has very small share in the suit property out of the total land measuring 386 Kanal 17 Marlas and insofar as Khasra No. 29//26/1 is concerned, he had earlier filed the suit in which his application for temporary injunction was rejected, now the same application cannot be maintained and has rightly been dismissed by the Courts below.

I have heard learned counsel for the parties and after examining the record, am of the considered opinion that both the Courts below have exercised their jurisdiction with material irregularity. Khasra No. 29//26/1 comprised in Khewat No. 2 is the land of Chah Pukhta which is meant for watercourse. It is not disputed that the plaintiff is a co-sharer in the joint holding which is yet to be partitioned. The petitioner had initiated the proceedings of partition before the Civil Court but was non-suited on the ground that the agricultural land is out of the purview of the Civil Court for the purpose of partition for which the petitioner had to knock the door of the Revenue Court under the provisions of the Punjab Land Revenue Act, 1887. It is now well settled that every co-sharer has an interest and right in every inch of the joint holding and since the property in dispute is still joint and not partitioned by an order of the Court, the defendants-respondents cannot change the nature of the suit land much-less Chah Pukhta falling in Khasra No. 29//26/1 to the detriment of the petitioner.

In view thereof, the impugned orders are hereby set aside and during the pendency of the suit, the defendants/respondents are restrained from raising any kind of construction on the suit property by changing the nature of Khasra No. 29//26/1.

This order shall, of course, apply to the petitioner as well being a co-sharer.