HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU MA No. 40/2025 CM No. 5004/2025 CM No. 5005/2025 Cav No. 1796/2025 Shankar Dass, Age 65 years S/o Sh. Amru R/o Village Tanger Tehsil and District Ramban …..Appellants Through: Mr. Nadeem Bhat, Advocate Vs 1. Shankar Dass S/o Chatru 2. Sachin Singh S/o Shankar Dass Both residents of village Tanger Tehsil and District Ramban .…. Respondents Through: Mr. Dheeraj Singh Katoch, Advocate for Caveator CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 12.08.2025 1. The appellant has,, through the medium of present appeal, laid a challenge to order dated 19.07.2025 passed by learned District Judge, Ramban, whereby interim injunction in favour of appellant/plaintiff has been declined and at the same time, respondents/defendants have been permitted to raise construction on the suit land subject to filing of an undertaking. 2. Issue notice to the respondents. Mr. Dheeraj Singh Katoch, Advocate, who is on caveat accepts notice on behalf of the respondents. 3. Caveat stands discharged. 4. Heard learned counsel for the parties and perused the record of the case. 5. It appears that the appellant/plaintiff had filed a suit for declaration that he is co-sharer of defendant No. 1/respondent No. 1 in respect of land measuring 12 marlas falling under khasra No. 314, land measuring 09 marlas falling under khasra No. 315 and land measuring 05 marlas falling under khasra No. 317 situated at village Tanger Tehsil Gool District Ramban. The appellant/plaintiff has also sought permanent prohibitory Sr. No. 127 2 MA No. 40/2025 injunction for restraining the defendants/respondents from raising any sort of construction in the aforesaid land. 6. As per the case of the appellant/plaintiff, he along with defendant No. 1/respondent No. 1 are co-owners of the land in question measuring 01 kanal 06 marlas which was part of joint holding of the parties. It has been submitted that the joint holding of the parties was partitioned in equal shares as a result of which, land measuring 11 kanals 14 marlas falling under khasra Nos. 221, 225, 226, 267, 268 and 270 and land measuring 01 kanal 01 marla falling under khasra Nos. 314, 315 & 317 has devolved upon the plaintiff/appellant who was in possession of this property after the death of his father. 7. It has been submitted that the appellant/plaintiff filed an application under Section 105 of the Land Revenue Act before the Tehsildar and as per the judgment dated 24.12.2024, land measuring 03 kanals 19 marlas has been directed to be handed over to the appellant/plaintiff but defendants/respondents have forcibly raised construction over the land that forms part of the share of the plaintiff/appellant. 8. Respondents/defendants in their written statement have submitted that the suit land is under their ownership and possession since inception as such, they have right to raise construction over the same. It has been submitted that partition of the joint property between the parties has taken place during the lifetime of their predecessor-in-interest and that the defendants/respondents have come into possession of the suit land after the partition had taken place. It has been contended that the order passed by the Tehsildar on 26.12.2024 has been stayed in appeal by District Judge, Ramban and possession of the land in question has never been delivered to plaintiff/appellant pursuant to the order of the Tehsildar. 9. It appears that the learned trial Court has after hearing the parties, passed the impugned order while deciding the application of the plaintiff/appellant under Order 39 Rule 1 & 2 CPC. The learned trial Court has declined to pass any interim injunction in favour of the plaintiff/appellant and has permitted the defendants/respondents to raise construction over the suit land subject to furnishing of an undertaking. 3 MA No. 40/2025 10. The appellant has challenged the impugned order on the ground that the learned trial Court has not appreciated the facts and the material on record in its proper perspective. It has been further contended that the plaintiff/appellant is in settled possession of the land in question pursuant to the order passed by the Tehsildar and this aspect of the matter has not been considered by the learned trial Court. It has been submitted that the impugned order passed by the learned trial Court suffers from legal infirmities. 11. If we have a look at the documents placed on record by the plaintiff/appellant along with the appeal, it is clear that it is the defendant No. 1/respondent No. 1 Shanker Dass, who is in possession of the suit land. Copy of Jambandi in respect of the land in question reveals that defendant No. 1/respondent No. 1 is in possession of the suit land. Copy of khasra girdawari for Kharief 2021 also reflects the possession of defendant No. 1 over the suit land. 12. The contention of the appellant/plaintiff is that pursuant to the order passed by Tehsildar in a suit under Section 105 of the Land Revenue Act, possession of the suit land has been handed over to the plaintiff/appellant. It is an admitted fact that the said order has been stayed by learned District Judge, Ramban in appeal. There is nothing on record to show that possession of the land in question has been handed over to the plaintiff/appellant after passing of the order dated 26.12.2024 by the Tehsildar. The material on record prima facie goes on to show that it is defendant No. 1 who is in possession of the suit property. Therefore, even if, it is assumed that the suit property is undivided joint property of the parties, still then, the position of law is that a joint owner who is in exclusive possession of any portion of the joint holding has a right to raise construction over the said portion of the property which of course subject to the ultimate partition of the joint holding. Therefore, the defendant No. 1 being in exclusive possession of the suit land, is entitled to raise construction thereon. 13. In view of the aforesaid legal position, learned trial Court has, while declining to pass an interim injunction in favour of the plaintiff/applicant 4 MA No. 40/2025 and permitting the defendant No. 1/respondent No. 1 to raise construction on the spot, not committed any illegality or irregularity. Thus, order impugned passed by the learned trial Court does not suffer from any perversity so as to warrant any interference by this Court in exercise of its appellate jurisdiction. 14. For the foregoing reasons, I do not find any merit in this appeal. The same is, accordingly, dismissed. (SANJAY DHAR) JUDGE JAMMU 12.08.2025 Tarun/P/S Whether the order is speaking? Yes Whether the order is reportable? No Tarun Kumar Gupta 2025.08.18 23:12 I attest to the accuracy and integrity of this document