A co-sharer may construct on an amicably demarcated portion despite absence of formal partition.

The appellant-plaintiff instituted a partition suit concerning 21 decimals of land described in the “Kha” schedule.

According to the plaint, the appellant occupied approximately 8 decimals, while the respondents occupied the remaining 13 decimals.

Although the property had not been partitioned by metes and bounds, the parties were allegedly in separate possession pursuant to an amicable arrangement.

The appellant had obtained an ad interim injunction restraining construction on the suit property.

The respondents applied under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908, for vacation of that injunction, relying on a sanctioned building plan and ongoing construction on their occupied portion.

The Trial Court vacated the injunction, subject to the construction being confined to the respondents’ demarcated portion and being carried out strictly in accordance with the sanctioned plan.

The respondents also undertook not to claim the cost of construction if the concerned portion was ultimately allotted to another co-sharer in the final partition decree.

Whether the Trial Court erred in vacating the ad interim injunction and permitting the respondents to continue construction on the disputed joint property?

Whether construction on the respondents’ portion would prejudice the appellant’s co-sharer rights or render the partition proceedings irreversible?

Whether the alleged discrepancies in the number of pillars, the nature of the proposed construction, and the alleged suppression by the respondents warranted restoration of the injunction?

The Court applied Order XXXIX Rule 4 of the Code of Civil Procedure, 1908, concerning discharge, variation, or setting aside of an injunction, together with the settled principles governing interlocutory injunctions, namely prima facie case, balance of convenience, and irreparable injury.

It considered the principles in Israil v. Shamser Rahman, ILR XLI 436, that a co-owner in possession of part of joint property cannot ordinarily alter its nature or use it to the prejudice of other co-sharers.

It considered Bina Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev, (1999) 5 SCC 222, and Gangubai Bablya Chaudhary v. Sitaram Bhalchandra Sukhtankar, (1983) 4 SCC 31, concerning the risk of irreversible construction on disputed joint property.

It further applied the principle that a party may be bound by admissions in its pleadings and, in the circumstances, be estopped from denying an agreed arrangement of separate possession.

The Court distinguished the authorities relied upon by the appellant because those cases involved construction by one co-sharer in a manner prejudicial to the rights of other co-sharers over the very portion in dispute.

In the present case, the appellant’s own plaint acknowledged that the parties were in separate possession of approximately 8 and 13 decimals pursuant to an amicable arrangement.

The Court therefore held that the appellant was bound by that position and could not, at the interlocutory stage, contend that construction within the respondents’ occupied 13-decimal portion necessarily invaded his rights.

The sanctioned plan and local inspection report indicated that the proposed construction was confined to the respondents’ portion.

The discrepancy regarding 24 sanctioned pillars and 35 observed pillars was explained by the respondents on the basis that some pillars supported an underground reservoir, and the Court considered the discrepancy immaterial because no substantive right of the appellant over his occupied 8 decimals was shown to be affected.

The respondents had obtained sanction, invested substantial sums, and commenced construction; consequently, restraining them would cause undue hardship.

The Trial Court’s safeguards—construction strictly according to the sanctioned plan and within the respondents’ entitlement, together with the undertaking regarding future allotment and construction costs—adequately protected the appellant’s interests.

The appellant’s apprehension of encroachment or prejudice was found to be unsupported.

The appeal, F.M.A. 1143 of 2026, was dismissed on contest, and the Trial Court’s order dated 28 August 2026 vacating the injunction was affirmed.

CAN 1 of 2026 was consequently disposed of, with no order as to costs.