Mohan And Others vs Sh. Man Singh And Others
2021 Latest Caselaw 3329 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                     CMPMO No.: 42 of 2020




                                                                          .
                                                     Decided on: 02.08.2021





    Mohan and others                                                  ....Petitioners.

                      Versus





    Sh. Man Singh and others                                          ...Respondents.
    Coram
    The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.





    Whether approved for reporting?1 Yes
    For the petitioners               :      Mr. G.R. Palsra, Advocate.

    For the respondents              :       Mr. Surender Verma, Advocate.

    Ajay Mohan Goel, Judge (Oral)

By way of this petition filed under Article 227 of

the Constitution of India, the petitioners/plaintiffs have

challenged the order passed by the Court of learned Civil

Judge, Court No. 2, Sundernagar, District Mandi, in CMA No.

165-VI/2020, filed in Civil Suit No. 86-1 of 2020, vide which,

an application under Order 39, Rules 1 and 2 of the Civil

Procedure Code filed by the present petitioners stood

dismissed by the said Court as well as the judgment dated

23.02.2021, passed by the Court of learned Additional

District Judge, Sundernagar, District Mandi, in Civil

Miscellaneous Appeal No. 38 of 2020, titled as Mohan and

Whether reporters of the local papers may be allowed to see the judgment?

others vs. Shri Man Singh and others, vide which, the order

passed by learned Trial Court stood affirmed by the learned

.

Appellate Court by dismissing the appeal preferred by the

present petitioners against the order of the learned Trial

Court.

2. Brief facts necessary for the adjudication of the

present petition are that the petitioners herein, have filed a

suit for permanent

prohibitory injunction

respondents with regard to the suit land on the ground that r against the

the entire land is joint between the parties and other co-

sharers and no co-sharer has a right to construct upon the

same. Yet, respondents started raising construction on best

portion of the land adjoining to the Gawajal to Kandyah road,

which led to filing of the suit as also the application under

Order 39, Rules 1 and 2 of the Code of Civil Procedure,

wherein a prayer was made that during the pendency of the

civil suit, the respondents be injuncted from carrying out any

construction over the best portion of the suit land till the

same was partitioned.

3. This application has been dismissed by the

learned Trial Court vide order dated 17.10.2020 by holding

that it was a matter of record that other co-sharers had raised

construction upon the suit land which was joint and which

construction was never objected to by the plaintiffs. Learned

.

Trial Court also held that the fact that no objection, at any

stage, was raised by the plaintiffs at the time when other co-

sharers were raising the construction also strengthened the

pleadings of the defendants with regard to their family

arrangement. Learned Court also held that there was enough

suit land available and it was not the case of the plaintiffs

that if the respondents are permitted to carry out the

construction, then no land would be available to other co-

shares. On these bases, learned Trial Court held that the

plaintiffs had failed to prove any irreparable loss or injury in

the event of denial of the interim relief to them.

4. These findings stand upheld by the learned

Appellate Court which observed that there was no prima facie

case in favour of the plaintiffs as no objection was raised by

them when other co-shares carried out the construction of

their houses and shops upon the suit land, who according to

the defendants, were close relatives of the plaintiffs. Learned

Appellate Court also held that learned Trial Court had rightly

highlighted the conduct of the applicants/plaintiffs which was

sufficient to decline the relief of temporary injunction. It also

held that even otherwise, the remedy available to the plaintiffs

was to seek partition of the joint land and not the relief of

.

injunction. On these bases, learned Appellate Court

dismissed the appeal filed by the plaintiffs/appellants.

5. I have heard learned Counsel for the parties and

also gone through the orders passed by the learned Courts

below.

6.

Herein both the learned Courts below have

returned the findings to the effect that the plaintiffs had not

objected to the construction of houses and shops on the joint

land by other co-shares, namely, S/Sh. Nand Lal, Pyare Lal

and Ashok Kumar.

7. During the course of arguments, learned Counsel

for the petitioners could not seriously dispute the findings

returned by learned Courts below, except by making a

submission that the construction which was raised by other

co-shares was without their consent.

8. Be that as it may, it is a matter of record that

there is nothing on record to suggest that the construction

carried out by other co-sharers was ever objected to by the

plaintiffs. Neither any civil suit nor any other proceedings

were initiated to demonstrate that the act of other co-shares

was ever objected to by the plaintiffs. This demonstrates that

the petitioners chose selectively the act of the present

.

respondents of carrying out the construction on the joint land

for the purpose of approaching the Court for the first time. No

answer worth credence has come forth as to why they did not

object to the constructions carried out by other co-shares on

the joint land during the course of the arguments. In this

view of the matter, this Court is of the view that the

petitioners have not been able to demonstrate that either

prima facie case or balance of convenience is in their favour

or in the event of non grant of interim relief, the petitioners

could have stated to have suffered irreparable loss or injury.

9. Further in exercise of powers so conferred upon it

under Article 227 of the Constitution of India, this Court is

not to act as an appellate Court. If the Courts below take a

view, which is possible on the basis of facts and material

available before them, then ordinarily, this Court does not

interferes with such just orders or decisions. The jurisdiction

under Article 227 of the Constitution of India is only to be

exercised in the cases where there is perversity in the order(s)

impugned.

10. Coming to this case, this Court does not finds any

perversity in the adjudications made by both the learned

.

Courts below as the view which has been taken by learned

Courts below is one of the possible views, which on the basis

of material before them, could have been taken by them.

Therefore, as this Court does not finds any merit in the

present petition, the same is accordingly dismissed.

11.

At this stage, Mr. G.R. Palsra, learned Counsel for

the petitioners submits that it may be clarified that the

construction, if any, raised by the respondents during the

pendency of the suit, shall abide by the adjudication thereof

and parties shall not claim any equity. Ordered accordingly.

12. It is clarified that the observations which have

been made while disposing of this petition are only for the

purpose of adjudication thereof only and learned trial Court

shall decide with the civil suit in accordance with law,

without being influenced by any of the observations made

hereinabove by this Court.

The petition stands disposed of in above terms, so

also pending miscellaneous application(s), if any.

(Ajay Mohan Goel) Judge August 02, 2021 (narender)