Co-Sharer of Property Cannot Be Restrained From Raising Construction On Exclusive Portion of Joint Property: J&K High Court

Justice Javed Iqbal Wani observed, “A co-sharer of a property, who is in exclusive possession of a joint holding, cannot be restrained from raising construction on that portion of the joint holding of which he is in exclusive possession”.

Background:

In the present case the petitioner, Neelam Sharma had filed a suit for partition and injunction against the respondent, alleging that she and the defendants were joint owners of a piece of land in Hiranagar. Neelam's husband had constructed a residential house on the land, and the respondent, instead of providing possession of a part of the house as agreed, forcibly took over the entire property and constructed a new residential house without her consent.

The trial court initially directed both parties to maintain the status quo on the property. However, the respondent appealed this decision, leading to the impugned order by the appellate court, allowing the respondent to proceed with construction on the disputed land.

Neelam Sharma challenged this order, arguing that it was hastily passed and effectively decided the suit prematurely.

Observations Of The Court:

Upon scrutinising the arguments made at the bar Justice Wani noted petitioner Neelam's admission about the joint ownership and the respondent's construction with her husband's consent and in view of the said admission deemed the impugned order by the appellate court setting aside the status quo order as justified.

“it is an admitted fact stated by the plaintiff/petitioner in the suit that the suit property is a joint property where upon a portion thereof, her husband constructed a residential house during his life time and the defendant/respondent 1 herein also got the plinth constructed thereon on the another portion with the consent of her husband”.

Taking note of the factual matrix of the case at hand the bench clarified that a co-sharer in exclusive possession of a joint holding cannot be restrained from raising construction on that portion of the property.

Emphasising that the appellate court had considered the admitted factual position and correctly applied the established legal principle the bench asserted that the exercise of supervisory jurisdiction under Article 227 of the Constitution of India should be sparingly used and not to correct mere errors of law and facts.

In light of these observations, the bench dismissed the petition.

Case Title: Neelam Sharma Vs Ashok Kumar

Citation: 2024 LiveLaw (JKL) 31

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