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Mahmood & Others v. Addl. District & Session Judge (F.T.C. No.4), Dist.G.B.Nagar - WRIT - C No. 10148 of 2006 [2006] RD-AH 6143 (21 March 2006)


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Heard the learned counsel for the parties.

The petitioners-plaintiffs filed a suit for permanent injunction, in which temporary injunction application was also moved and was allowed by the trial court, against which the appeal, filed before the District Judge, was allowed and the injunction order, granted by the trial court, was set aside.

The plaintiffs-petitioners come with a case that the property in question is joint property of plaintiffs and defendant No. 3. The defendant No. 3 has sold out his share in the said property to defendants No. 1 and 2. Obviously in pursuance to the aforesaid transfer, the defendants-respondents No. 1 and 2 could not hold anything beyond the share of defendant No. 3, but as per the plaint case they are trying to raise construction over a larger area than their share in the land. Obviously, if the plaintiffs-petitioners had a grievance against respondents raising construction over the disputed plot, they should have sought for the partition of that plot and that would have solved the purpose. But strangely they have filed a suit for permanent injunction. However, if a co-sharer in a particular property is proposing to raise construction over a joint land, he always raises it at his own risk. In case the property is partitioned by an order of the court and the constructed portion falls in the partition lot of the other party, the co-sharer raising that construction looses it, but the co-sharer cannot stop from raising construction because he is the owner of the property in the same manner as the plaintiffs.

The appellate court, taking into all these aspects in the matter, has found that granting of temporary injunction in the present case was not actually warranted in law and has accordingly interfered with the orders of the trial court. I do not find any error in that appellate court's order as to occasion an interference in extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India.

The petition, thus, is without merits and is hereby dismissed.

It is, however, observed that the trial court would take up the disposal of the suit expeditiously.




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