HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU CM(M) No. 194/2024 CM(M) No.245/2024 CM(M) No. 246/2024 CCP(S) No. 457/2024 Noor Mohd Through :- Mr. Anil Sethi Advocate V/s Fakar Din and ors Through :- Mr.Mandeep S. Sambyal Advocate. Mr. Amit Khajuria Advocate. CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT(ORAL) CM(M) No. 194/2024 1 By this petition filed under Article 227 of the Constitution of India, petitioner has challenged the order dated 15.07.2024 passed by the learned Additional District Judge, Samba (hereinafter referred to as the appellate court), whereby, in an appeal preferred against the order of the Munsiff, Samba (hereinafter referred to as the "trial court"), both parties were temporarily restrained from creating any third-party interest over the suit land. The appellate court further observed that the respondents cannot be restrained from using the land and raising construction thereon, insofar as the same falls within their possession. 2 The impugned order has been assailed on the ground that the findings recorded by the appellate court are perverse and contrary to the settled principles of law governing the grant of interim injunction. It is contended that the respondents have been permitted to raise construction on 2 the reasoning that, in the event the petitioner ultimately succeeds, he would receive property of enhanced value. According to the petitioner, such reasoning is wholly erroneous and unknown to law. It is further submitted that since the partition of the suit land has not taken place, it was incumbent upon the trial court as well as the appellate court to preserve the property until the respective shares of the parties are demarcated and determined. According to the petitioner, permitting the respondents to raise construction amounts to an exercise of jurisdiction not vested either in the trial court or the appellate court. It is, thus, urged that the impugned order deserves to be set aside in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India. 3 Vide order dated 21.08.2024, this Court, while issuing notice to the respondents, directed the parties to maintain status quo on spot with respect to the suit land. 4 The petitioner/plaintiff, along with respondents/defendants Nos. 1 to 3 and the father of defendants Nos. 4 to 6, are stated to be joint owners in joint possession of land falling under Khasra No. 542, situated at Bari, Tehsil Bari Brahmana, District Samba (hereinafter referred to as ‘the suit land’). The common ancestor of the petitioner and the respondents was the original owner in possession of the suit land, and following his demise, the petitioner and respondents succeeded to the estate, with the revenue mutation attested in their favour. The suit land, as inherited, has not been partitioned till date, and all co-sharers are entitled to enjoy it and derive benefits therefrom in proportion to their shares. 3 5 It is the case of the petitioner that the respondents are attempting to alienate the suit land and forcibly raise construction thereon by creating a pathway through the land, allegedly with the assistance of hired musclemen, without seeking partition or specifying the portion of each co-sharer. Despite requests by the petitioner to refrain from such acts, the respondents remained adamant and, in order to defeat the petitioner's rights, started collecting construction material with the intention of ousting the petitioner from the suit land. 6 In their written statement before the trial Court, the respondents have admitted that the suit land was originally owned by their common ancestor, namely Gammi, who cultivated the entire land during his lifetime. Upon his death, it is claimed that the sons of Gammi effected a family settlement/partition, whereby land situated at Ban Khad fell to the shares of Noor Mohammad, Khair Din and Kau, and land at Khra Madama was allotted to Fakhar Din and Hassan Din. On this basis, it is averred that the sons of Gammi have already constructed houses on their respective shares. 7 The learned trial court, upon consideration of the pleadings and submissions, allowed the application for interim relief vide order dated 07.03.2024, restraining both parties from creating any third-party interest over the suit land until the final disposal of the suit. The trial court has held that non-grant of temporary injunction would result in irreparable loss to the petitioner, as the suit land was required to be preserved till adjudication of legal rights. 8 The appellate court, upon appeal, while affirming the direction restraining creation of third-party interests, observed that the balance of 4 convenience tilted in favour of the respondents. The appellate court has held that the petitioner would not suffer irreparable loss or injury in the absence of an interim injunction restraining construction, and further opined that the respondents could not be prevented from raising construction on land in their own possession. 9 Heard learned counsel for the parties and perused the record. 10 From a perusal of the pleadings and the impugned order, it emerges that respondent No. 4 is raising construction on a portion of the suit property, the petitioner has already raised construction on another portion of the said property. The impugned order indicates that the relevant revenue entries, including the Khasra Girdawari, as well as the reports submitted by the Tehsildar and the concerned Panchayat, clearly reflect that all parties are in separate and exclusive possession of distinct portions of the suit land. These documents further show that, although no formal partition has taken place through legal proceedings, the property has been divided among the parties, each having control over a specific portion. 11 In such circumstances, directing respondent No. 4 to stop construction would amount to causing undue hardship and prejudice, particularly when similar liberty has been exercised by the petitioner. The principle of equality among co-sharers and the doctrine of balance of convenience weigh heavily in favour of the respondents. The appellate court, in its impugned order, has rightly held that in view of the respective possession of the parties and the absence of demonstrated irreparable loss, the respondents are entitled to continue construction on land which is in their 5 exclusive possession. There is no basis to interfere with such findings, which are supported by material on record and consistent with settled law. 12. The question that arises for consideration is as to whether, one co-sharer can seek to restrain another co-sharer from raising construction upon a portion of joint property which is in the exclusive possession of the latter. This issue is no longer res integra. In Sardari Lal Gupta v. Siri Krishan Aggarwal, AIR 1984 P&H 439, the Punjab & Haryana High Court has laid down the principle that a co-sharer in joint property cannot be restrained from raising construction on a specific portion merely on the ground that the property remains formally undivided, unless the party seeking such injunction demonstrates specific and irreparable harm or interference with their share or rights. This Court, in Khatoon Magray & Ors. v. Subhan Magray & Ors., (2005) 2 JKJ 210, while relying on the above precedent, has reiterated that a decree of permanent prohibitory injunction in favour of a co-sharer cannot be granted against another co-sharer preventing him from enjoying the joint property. Similarly, in Kuldeep Singh v. Sant Nirankari Mandal & Ors., CIMA No. 501/2013, decided on 16.11.2017, this Court has reaffirmed that a co-owner who is in settled and exclusive possession of a defined portion of joint property is entitled to raise construction thereon, provided such construction is confined to his or her notional share and does not prejudice or infringe the rights of other co-owners. Para 9 of the said judgment is relevant to the context and is reproduced hereunder: 9. The factual position by and large is clear from the pleadings of the parties, averments in the memorandum of appeal and submissions made at Bar on behalf of the parties. Legal position in regard to the competence of a co-owner to transfer a specific portion of the joint holding by sale or otherwise, consequences of such a transfer and rights of the transferee by now and since 6 long is well settled. A co-owner in exclusive possession of a specific portion of the joint holding can transfer that portion to a third person but such transfer should not exceed his share in the entire joint holding. In the case of sale of a specific portion of a joint holding, the vendee will get the right of possession of the property sold to him and status of a co-sharer qua the said property and the sale would be subject to partition at the time of partition among the co-owners. Likewise, legal position in regard to the exclusive use of a portion of joint holding in possession of a co-owner, in particular, permissibility of raising construction on the said portion is also well settled. It is permissible for a co-owner to raise construction on that portion of the joint holding of which he has been in exclusive possession without any objection from the other co-owners. This right of the co-owner, however, is not totally unfettered and is subject to some conditions, which need not be discussed here (See Mst. Rahti v. Wali Ganai and ors. AIR 1966 J&K 39, Mohammad Akram Siah v. State and ors, 2009 (2) SLJ 466, Kabla Singh and anr. v. Pari Ram and ors, 2009 (2) JKJ 313 and Din Dayal Kapoor and ors. v. Kusum Kapoor, 2014 (1) 351). Suffice to say, briefly, the vendee of a portion of a joint holding will get rights in that portion to the extent of the rights held by the vendor” 13 Applying the settled legal principles to the facts of the present case, it becomes evident that the respondents, who are admittedly in exclusive possession of identifiable portions of the suit property, cannot be legally restrained from raising construction thereon. There is no material on record to show that such construction would either exceed their notional share or interfere with the petitioner's use or enjoyment of the property. The appellate court has rightly restrained both the parties from creating any third-party interest in the suit land, thereby safeguarding the overall interest in the property pending final adjudication. The said approach strikes a fair balance and ensures that the rights of both parties are preserved. 14. In light of the foregoing discussion, this Court is of the considered view that the impugned order passed by the learned appellate court 7 neither suffers from any jurisdictional infirmity nor discloses any perversity so as to warrant interference in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The order is well-reasoned, based on appreciation of the pleadings and the material on record, and is in consonance with the settled legal principles governing the rights of co-sharers in joint property. The appellate court has exercised its discretion judiciously and in accordance with law. The mere fact that an alternative view is possible or that the petitioner is dissatisfied with the conclusions arrived at by the appellate court does not by itself constitute a ground for interference. 15 It is well-settled that the power of superintendence under Article 227 is not to be exercised as a matter of course or to correct mere errors of fact or law, but only where the order under challenge suffers from patent illegality, manifest injustice, or gross perversity. As held by the Supreme Court in Shalini Shyam Shetty and Another v. Rajendra Shankar Patil, (2010) 8 SCC 329, the supervisory jurisdiction under Article 227 is to be exercised with great caution and circumspection and only in cases where the subordinate court or tribunal has acted without or in excess of jurisdiction, or where there is a flagrant violation of the principles of natural justice. In the present case, no such exceptional circumstances have been demonstrated. 16 Accordingly, this Court finds no merit in the petition, and the same is, therefore, dismissed. It is, however, clarified that the observations made in this order, as well as those made in the impugned order of the appellate court, are confined to the adjudication of the present proceedings and shall not be construed as final or binding determination on the merits of the main suit. The trial court shall proceed to decide the suit independently, uninfluenced by any such observations, and in accordance with law. 8 CM(M) Nos. 245/2024 & 246/2024 17. Since the issues involved in CM(M) Nos. 245/2024 and 246/2024 are identical to those adjudicated in the aforesaid petition, the discussion and conclusions arrived at hereinabove shall apply with equal force to the said connected petitions. Accordingly, in light of the reasoning and findings recorded hereinabove, CM(M) Nos. 245/2024 and 246/2024 are also dismissed. It is, however, clarified that the dismissal of these petitions shall be subject to the same observations and clarifications as have been recorded in the lead matter i.e CM(M) No. 194/2024. CCP(S) No. 457/2024 18 This contempt petition has been filed alleging non-compliance of interim order dated 11.09.2024, whereby a direction was issued to the SHO of the concerned Police Station to implement the order dated 21.08.2024. However, since the main petition, from which the present contempt petition arises, has been dismissed vide order of even date, no further adjudication is warranted in the present contempt proceedings. Accordingly, the contempt petition is disposed of as infructuous, and the proceedings initiated therein are hereby closed. The Registry is directed to place a copy of this judgment on record in each of the connected case files. (MOKSHA KHAJURIA KAZMI) JUDGE Jammu 30.07.2025. Sanjeev Whether approved for judgment: Yes/No