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Judgment
At the time when the appellants'' prayer for extension of interim order was being considered by this Court, we were invited by the learned counsel appearing for the parties to dispose of the appeal itself on merit.
We are informed by the learned counsel appearing for the parties that all papers which are necessary for disposal of the appeal are available before us. As such, we have decided to dispose of the appeal itself on merit on the papers available before us by dispensing with the requirement of filing paper book in this appeal.
Let us now consider the merit of the instant appeal in the facts of the present case.
The instant first miscellaneous appeal is directed against an order being No. 24 dated 11th August, 2016 at the instance of the plaintiffs/appellants.
By the impugned order, the ad interim order of injunction which was passed by the learned Trial Judge in favour of the plaintiffs, stood vacated. The plaintiffs, thus, felt aggrieved. As such, the instant appeal was filed by the plaintiffs.
Let us now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the present case.
The plaintiffs filed a suit for partition against the defendants admitting them as their co-sharers. After filing the said suit, the plaintiffs filed an application for temporary injunction. An ad interim order of injunction was passed in the suit.
The defendant/respondent no. 1 contested the plaintiffs'' application for temporary injunction by filing objection.
While vacating the said ad interim injunction, the learned Trial Judge recorded in the order that the defendant no. 1 had started raising construction in a portion over the joint property, however, such construction could not be completed due to ad interim order of injunction passed by the learned Trial Judge.
Considering the fact that the defendant no. 1 and his family members have no dwelling house to reside and they are in urgent need of an accommodation, the learned Trial Judge vacated the said ad interim order of injunction and permitted the defendant/respondent no. 1 to complete the incomplete construction already raised in a portion of the suit property. Such impugned order was passed on the basis of an undertaking given by the said defendant/respondent no. 1 that he will remove the portion of such construction which will be found to have been raised in excess of his share.
We do not find any unreasonableness in the impugned order as a cosharer has every right to enjoy every inch of the joint property. Right to raise construction by a co-sharer over the joint property cannot be denied. However, a co-sharer should not be permitted to raise construction either in the best portion of the suit property or by extending such construction in excess of his share. If a co-sharer is allowed to do so, then ultimately the relief by way of partition may not be granted to the co-sharer at the time of passing the final decree in the suit.
Here is the case where we do not find any allegation from the side of the plaintiffs that the said defendant/respondent no. 1 is raising such construction in the best portion of the suit property to frustrate the partition suit. Plaintiffs claimed that such construction is being raised by the said defendant/respondent no. 1 in excess of his share.
Learned Trial Judge found that the plaintiffs are not raising such construction in excess of his share. However, since the defendant/respondent no. 1 has given an undertaking to the court that he will remove portion of such construction which will be ultimately found to have been raised in excess of his share, this Court does not find any justification to interfere with such impugned order. The appeal, thus, stands dismissed.
In view of dismissal of the appeal in the manner as aforesaid, no further order need be passed on the stay application. The said application being CAN 9079 of 2016 is, thus, deemed to be disposed of.