________________________________________________________ vs Rottam Lal
2022 Latest Caselaw 10776 HP

             IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                                               CMPMO No. 245 of 2022
                                        Decided on: December 13, 2022




                                                                                .
    ________________________________________________________
    Smt. Satya Devi                                   ...........Petitioner





                                      Versus
    Rottam Lal                                          ....Respondent
    ________________________________________________________





    Coram:
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting? 1Yes.
    ________________________________________________________

    For the Petitioner                     :      Mr. Romesh Verma, Advocate.





    For the Respondent     :   Mr. Lalit K. Sharma, Advocate.
    ________________________________________________________

    Sandeep Sharma, Judge (oral):

Instant petition filed under Art. 227 of the Constitution of

India lays challenge to judgment dated 11.3.2022 passed by learned

Additional District Judge (CBI Court) Shimla, Himachal Pradesh camp

at Rohru in Civil Misc. Appeal No. 11-R/14 of 2020, affirming order

dated 22.8.2020 passed by Civil Judge, Court No. II, Rohru, District

Shimla, Himachal Pradesh in CMA No. 65-06 of 2020 in Civil Suit No.

38 of 2020, titled Rottam Lal v. Satya Devi, whereby learned trial Court,

while allowing an application filed under Order XXXIX, rule 1 and 2 by

respondent/plaintiff (hereinafter, 'plaintiff'), directed the parties to

maintain status quo as on that date qua nature, possession and

construction over suit land.

2. Precisely, the facts of the case, as emerge from the record, are

that the plaintiff filed a civil suit against the petitioner-defendant

(hereinafter, 'defendant') (Annexure P-1), for permanent prohibitory

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

injunction with regard to land bearing Khasra Nos. 658, 660 and

1665/659 comprised in Khewat Khatauni No. 195/379 to 389 situate in

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revenue Chak Sunda-Bhonda, Tehsil Chirgaon, District Shimla, ,

averring therein that the parties are co-owners of suit land as per

Jamabandi for the year 2008-09 and till the time, same is partitioned in

accordance with law, nobody can be permitted to raise construction on

the suit land. Plaintiff averred that in the year 2015, defendant filed a

suit in the court of learned Senior Civil Judge, Rohru, i.e. Civil Suit No.

88/1 of 2015, titled Satya Devi v. Kanwar Singh, for permanent

prohibitory injunction against the present respondent, and some other

co-owners with respect to aforesaid land, on the ground that since, suit

property is yet to be partitioned by metes and bounds, co-owners, be it

plaintiff or defendant cannot be permitted to raise construction

thereupon. Plaintiff further averred that the suit was decreed vide

judgment and decree dated 18.4.2019 by learned Senior Civil Judge,

Court No.1,, Rohru thereby restraining present plaintiff from raising any

construction over suit land, till the time, partition is effected in

accordance with law. Plaintiff averred that till date, no partition of suit

land has taken place as such, defendant, who at one point of time, had

raised objection with regard to joint ownership qua the suit land, cannot

be permitted to raise construction till the time, suit land is partitioned in

accordance with law. Plaintiff further averred that the defendant is

trying to raise construction over suit land and has already raised pillars

on some portion of suit land, as such, she is required to be restrained

by way of injunction. Plaintiff also filed an application under order 39

rule 1 and 2 CPC alongwith suit, for issuance of ad interim injunction.

Prayer made in the application on behalf of plaintiff came to be resisted

.

on behalf of defendant, who in her written statement to the plaint and

reply to stay application, though admitted factum with regard to passing

of judgment and decree dated 18.4.2019 by learned Senior Civil Judge,

Court No.1, Rohru, in Civil Suit No. 88/1 of 2015, titled Satya Devi v.

Kanwar Singh, whereby plaintiff herein was restrained from raising

construction over the suit land, till the time property is partitioned in

accordance with law, but categorically stated that despite there being

injunction order passed by learned Senior Civil Judge vide judgment

and decree 18.4.2019, plaintiff has raised a multi-story building upon

the suit land, as such, he cannot stop other co-owners, including

defendant, from raising construction over suit land, which is yet to

portioned, especially when co-owners are already in possession of

specific portions of suit land. It has been averred in the written

statement and reply to the application, that already execution petition

under Order XXI rule 32 CPC stands filed against plaintiff for execution

of judgment and decree dated 18.4.2019 passed in Civil Suit No. 88-1

of 2015.

3. Learned trial Court on the basis of pleadings adduced on record

by respective parties, allowed the application and directed parties to

maintain status quo qua as on that date, qua nature, possession and

construction over suit property till final disposal of the suit.

4. Being aggrieved and dissatisfied with order passed by learned

trial Court, defendant approached learned Additional District Judge

(CBI Court), Shimla, camp at Rohru by way of an appeal under Order

XLIII rule 1 CPC, but the fact remains that the same was dismissed

.

vide judgment dated 11.3.2022. In the aforesaid background,

defendant has approached this court in the instant proceedings,

praying therein to set aside the judgment and the order passed by

learned courts below, whereby parties have been directed to maintain

status quo qua nature, possession and construction on the suit land.

5. I have heard the parties and gone through the records.

6.

Careful perusal of material available on record, clearly reveals

that the prior to filing of suit at hand, defendant had filed Civil Suit No.

88/1 of 2015 in the court of Senior Civil Judge, Court No.1 Rohru, titled

Satya Devi v. Kanwar Singh, seeking permanent prohibitory injunction

against plaintiff and other co-owners with respect to suit land, on the

ground that the suit land is joint inter se parties and till the time, same

is partitioned in metes and bounds, parties cannot be permitted to raise

construction on the suit land. Admittedly, at the time of filing of suit,

none of the co-owners had raised construction and accordingly learned

trial Court decreed the suit filed by defendant, vide judgment and

decree dated 18.4.2019, restraining the plaintiff herein from raising

construction over suit land, till the time same is partitioned in

accordance with law. However, despite there being aforesaid judgment

and decree passed against plaintiff, he raised a multi-story building on

one portion of suit land, as a result of which, defendant herein was

compelled to institute execution proceedings under Order XXI, rule 32

CPC before learned trial Court, which is pending adjudication.

However, after construction having been raised by the plaintiff on one

portion of suit land, defendant being one of co-owners also started

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raising construction on the portion of land, which was in her

possession. In the aforesaid background, plaintiff approached learned

trial Court by way of instant suit for permanent prohibitory injunction

restraining defendant from raising any construction on suit land till the

time same is partitioned in accordance with law. Suit is pending before

learned trial Court but since learned courts below, while passing ad-

interim injunction/judgment, have restrained defendant from raising

construction over suit land till the time same is partitioned in

accordance with law, defendant has approached this court in the

instant proceedings.

7. Having taken note of the pleadings adduced on record by

respective parties as well as facts noticed herein above, this court finds

force in the submission of Mr. Romesh Verma, learned counsel for the

defendant that once during pendency of suit, plaintiff himself has raised

construction on one portion of land, which is still joint inter se parties,

he is estopped from raising objection qua construction, if any, raised

on suit land by other co-owners, that too on the ground that the joint

land is still un-partitioned inter se co owners.

8. No doubt, at first instance, plaintiff himself by way of civil suit

No. 88/1 of 2015, sought injunction order against the plaintiff on the

ground that suit land is still unpartitioned and learned court, having

taken note of the fact that nobody has raised construction on suit land,

passed decree of permanent prohibitory injunction against the plaintiff

restraining him from raising construction on suit land, but it is not in

dispute that despite there being decree of injunction against plaintiff, he

.

raised construction on one portion of land. Once, he has already raised

construction on one portion of joint land, he is estopped from raising

objection qua construction if any, raised or being raised by other co-

owners, because with the raising of construction on one portion of land,

very nature and character of joint status of land has severed.

9. True it is that execution petition stands already filed against the

plaintiff for execution of judgment and decree dated 18.4.2019, but that

could not be a ground for learned courts below to pass injunction

order/judgment against the defendant, when it never came to be

disputed that the plaintiff himself has raised construction over suit land.

Since despite there being decree of injunction passed by learned

Senior Civil Judge, Court No.1 Rohru, in Civil Suit No. 88/1 of 2015,,

plaintiff has raised construction, defendant, who is one of co-owners,

cannot be stopped from raising construction on the land, which is in his

possession.

10. Though, Mr. Lalit K. Sharma, learned counsel for the plaintiff,

while supporting the impugned judgment and order passed by learned

courts below, vehemently argued that there is no illegality in the same,

but was unable to dispute factum with regard to construction raised by

plaintiff on one portion of suit land. He submitted that raising of

construction, if any, by one of co-owners, on the suit land, will not

authorize other co-owners to raise construction. He further submitted

that the plaintiff is already facing execution proceedings filed by the

defendant for execution of judgment and decree dated 18.4.2019 and

in case, executing court comes to the conclusion that the plaintiff has

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violated judgment and decree dated 18.4.2019, he may have to

remove construction and, in that event, great prejudice would be

caused to plaintiff, if, at this stage, defendant is allowed to raise

construction. Mr. Sharma submitted that in case, defendant herein is

permitted to raise construction, suit having been filed by plaintiff will

become infructuous. He further argued that otherwise also present

petition under Art. 227 of the Constitution of India against the judgment

passed by learned Additional District Judge in an appeal filed under

Order XLIII rule 1 CPC is not maintainable.

11. Mr. Romesh Verma, learned counsel for the defendant, invited

attention of this court to Judgment passed by this Court in Bhajna

Nand v. Bharat Ram, CMPMO No. 211 of 2022, decided on

31.8.2022, which has been further upheld by Hon'ble Apex Court, to

enure his argument that present petition under Art. 227 of the

Constitution of India, against the order passed in an appeal filed under

Order XLIII, rule 1 CPC, is maintainable.

12. Having perused the judgment rendered by this Court in Bhajna

Nand supra, this court finds that all the issues/ pleas sought to be

raised in the instant petition by learned counsel for the parties, have

been dealt in detail by this court in Bhajna Nand supra, whereby this

court has categorically held that, while passing interim order under

Order XXXIX, rules 1 and 2 CPC, court besides taking into

consideration three factors viz. prima facie case, balance of

convenience and irreparable loss and injury, must taken into

consideration the conduct of the party seeking interim relief.

.

13. In the case at hand, interestingly, plaintiff himself has raised

construction on one portion of land and as such, his action of stopping

other co-owner from raising construction over specific portion of suit

land adversely reflects upon his conduct as such, is not entitled to

discretionary relief of injunction.

14. It would be apt to take note of following paras of judgment

supra:

"7. Before ascertaining the correctness and genuineness of the

aforesaid submissions made by the learned counsel for the parties, this

Court, at the first instance deems, it fit to deal with specific question raised with regard to maintainability of the petition filed under Article 227 of the Constitution of India, laying therein challenge to the finding rendered by the learned District Judge in an appeal filed against the

order passed by the learned trial court in application filed under Order 39 Rules 1 & 2 CPC. At this juncture, it would be apt to take note of

the judgment passed by the Hon'ble Apex Court in case titled Garmet Craft v. Prakash Chand Goel, 2022 4 SCC 181, wherein it has been

specifically held that while exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court does not act as

a Court of First Appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. It has been further held in the afore judgment that supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. Power under Article 227 of the Constitution of India is to be exercised where there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion arrived at by the Courts below. Relevant part of the judgment reads as under:

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under

.

Article 227 of the Constitution of India. The High Court

exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal

flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice.

The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary

relief must be exercised to ensure there is no miscarriage of

justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2 has observed: (SCC pp. 101-102, para 6)

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of

power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the

duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong

decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior

court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

.

8. There cannot be any quarrel with the aforesaid exposition of law laid down by the Hon'ble Apex Court because admittedly, while exercising supervisory jurisdiction under Article 227 of the Constitution of India,

this Court cannot act as court of First Appeal and as such, cannot re- appreciate the evidence on facts while ascertaining the correctness of the order impugned in such proceedings. However, this Court would be justified in exercising power under Article 227 of the Constitution of

India in such like cases where the findings are not based upon the evidence available on record or same are so perverse that no reasonable person could possibly come to such a conclusion as has

been arrived by the court.

9. Now being guided by the aforesaid principle of law laid down by the Hon'ble Apex Court with regard to exercise of supervisory jurisdiction under Article 227 of Constitution of India, this court proceeds to

ascertain on the basis of material available on record whether findings returned by learned District Judge while setting aside the order passed by the learned trial court dismissing the application filed under Order

39 Rules 1&2 CPC are based upon material/evidence adduced on record by the respective parties or same is totally contrary to the record

and the evidence.

10. No doubt, until partition is complete, parties are to be treated as co-

owners in the joint land. It is well settled that possession of one of the co-sharers is possession of all in the eye of law, unless the person, who has been in exclusive possession asserts his title, in himself to the exclusion of the other co-sharers, which may amount to ouster. All the coowners have equal rights and coordinate interest in the property though their shares may be either fixed or indeterminate. Every co- owner has a right to enjoy the possession equally to that of co-owner. It has been repeatedly held by Hon'ble Apex Court as well as this Court that a person, who has been in the possession of joint property, is

holding the property not only of himself, but also in favour of other co- sharers. Similarly, by now it is well settled that mere fact that one of the party is recorded as coowner of the suit land cannot deprive or

.

suppress the right of other coowners to utilize the land by raising

construction. Issue with regard to rights and liabilities of the co-sharers has been aptly dealt with by Coordinate Bench of this Court in case

titled Ashok Kapoor vs. Murtu Devi 2016 (1) Shim. LC 207 (2015) ILR H.P.1312. Relevant paras of aforesaid judgment are as under:-

"46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to

raise construction to the exclusion of others, the following principles can conveniently be laid down:-

i) a co-owner is not entitled to an injunction restraining another co- owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in

possession of the property amounts to ouster prejudicial or adverse to

the interest of the co-owner out of possession.

ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.

(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can

certainly seek an injunction to prevent the diminution of the value and utility of the property.

(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a coowner out of possess ion can seek an

injunction to prevent such act which is detrimental to his interest.

v) before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially

would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with.

(vi) the question as to what relief should be granted is left to the

discretion of the Court in the attending circumstances on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.

47. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff:-

(i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction;

(ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's right or likely infringement

of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and

(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not

.

granted. In addition, temporary injunction being an

equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands."

11. In the case at hand, pleadings adduced on record by the respective parties clearly reveal that parties to the lis are recorded as coowners in the big chunk of the joint land. Copies of jamahbandis for the year,

1997-98, 2001-02, 2006-07, 2011-12 and 2016-17 with regard to suit land clearly reveal that though plaintiff and defendant are co-owners in the suit land, but in column of possession, they stand recorded in separate possession as per their respective shares. Though case of the

plaintiff is that defendant has raised construction on the suit land more

than his share, but no material worth credence ever came to be led on record to rebut the revenue entries, perusal whereof clearly reveals that defendant is raising construction on the suit land measuring khasra No.

565, which as per the revenue records is in possession of the defendant. Revenue record clearly reveals that defendant is in exclusive possession of the suit land comprising khasra No. 565 on the spot and

it has been further claimed by the plaintiff that suit land comprising

khasra No. 565 is more valuable being abutted to the road and same is trying to be grabbed by the defendant on the basis of his possession despite the fact that main Khata, in which entire suit land situate is not

partitioned interse parties. On the other hand, defendant has categorically submitted that plaintiff is in possession of the land measuring khasra No. 522 and 384 which are also adjoining to the roadside. Plaintiff has not specifically denied being in possession of khasra Nos. 522 and 384. Order passed by the learned trial court, which subsequently came to be set-aside by the order passed by the learned District Judge clearly reveals that defendant successfully proved by placing on record the photographs that plaintiff has

constructed house/structure on the suit land comprising khasra No.

384. Otherwise also, perusal of revenue record clearly reveals that plaintiff has already raised construction on khasra Nos. 522 and 384

.

and as such, he is estopped at this stage to claim that defendant cannot

be permitted to raise construction on the suit land till the time same is not partitioned by metes and bounds, especially when there is no

dispute that defendant is in exclusive possession of the land comprising khasra No. 565. Learned trial court having taken note of the revenue record as has been detailed herein above, rightly arrived at a conclusion that when there is no dispute that parties are in possession

of the separate khasra numbers in joint land and they have already raised some construction on the land in their possession and as such, there was no occasion for the learned District Judge to setaside the

aforesaid finding on the ground that no family arrangement arrived

inter-se parties was on record. True it is that family arrangement, if any, arrived inter-se parties never came to be placed on record by the defendant, but same time, revenue record as has been taken note by the learned trial court while dismissing the application filed under Order

39 Rule 1 &2 CPC was never rebutted by the plaintiff. Revenue record i.e. Jamabandi for the year 1997-98, 2001-02, 2006-07, 2011-12 and

2016-17 clearly reveals that parties to the lis though are joint owner of the land in question, but they are in possession of the specific khasra

number in the joint land in one khata, if it is so, non-placing of family arrangement/settlement, if any, by the defendant is of no consequence.

Once plaintiff himself has not denied the factum with regard to his having possession over some khasra numbers as is reflected in the revenue record placed on record, coupled with the fact that he has already raised construction on khasra Nos. 522 and 384, which are in his possession, he cannot be permitted to seek discretionary relief of injunction from the competent court of law on the ground that land is still joint and yet to be partitioned by metes and bounds. Leaving everything aside, this Court finds that defendant is raising construction only on small portion of land whereas he is owner of the half portion of

the entire suit land. Plaintiff as well as defendant have already raised some construction on the land adjoining to the road and much area is vacant which is available for partition. Since it is not in dispute that

.

defendant is already in possession of the land, over which he has raised

some construction, coupled with the fact that plaintiff has already raised construction on some portion of the land adjoining to the road

and area of the land is still left, it cannot be said that construction if permitted would amount to ouster of the plaintiff from the suit land. Since defendant is intending to raise construction over the small portion of the land in his possession, no prejudice would be caused to

the plaintiff in case he is permitted to go ahead with the construction, especially when it stands established on record that plaintiff himself has already raised some construction on his portion of the land.

12. By now it is well settled that before grant of injunction, Court must be satisfied that the party praying for relief has a prima facie case and balance of convenience is in its favour. Besides above, while granting injunction, if any, Court is also required to consider that whether the

refusal to grant injunction would cause irreparable loss to such a party. Apart from aforesaid well established parameters/ingredients, conduct

of the party seeking injunction is also of utmost importance, as has been held by Hon'ble Apex Court in case M/S Gujarat Bottling Co.

Ltd. & Ors. Vs. The Coca Cola Co. & Ors., AIR 1995, 2372. In case a party seeking injunction fails to make out any of three ingredients, it

would not be entitled to injunction. Phrases, "prima facie case", "balance of convenience" and "irreparable loss", have been beautifully interpreted/defined by Hon'ble Apex Court in case titled Mahadeo Savlaram Shelke v.The Puna Municipal Corpn., J.T. 1995(2) S.C. 504 relying upon its earlier judgment in case titled Dalpat Kumar v. Prahlad Singh (1992) 1 SCC 719 has held as under:-

"...the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and

circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either

.

party and whether the plaintiff could be adequately

compensated if injunction is refused. The existence of prima fade right and infraction of the enjoyment of him property or the right is a condition forthe grant of temporary injunction. Prima facie case is not to be confused with prima facie title

which has to be established on evidence at the trial. Only prima facie case is a 420 substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in "irreparable injury" to the party

seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only

that the Injury must be a material one, namely one that cannot

be adequately compensated by way of damages. The balance of convenience must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if

the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the

suit, the subject matter should be maintained in status quo, an injunction would be issued. The court has to exercise discretion in granting or refusing the relief of ad interim injunction

pending the suit."

13. As has been stated hereinabove, conduct of the parties seeking

injunction is very relevant for considering prayer made for injunction. In the case at hand, conduct of the plaintiff is not above the board. He after having raised construction on some portion of the joint land under his possession, filed suit restraining the defendant from raising construction on the pretext that suit land is still un-partitioned. In case titled M/S Gujarat Bottling Co. Ltd. & Ors.' case supra, it has been categorically held that while passing interim order of injunction under Order 39 Rule 1 & 2 CPC, court besides taking into consideration three specific principles, i.e. "prima facie case", "balance of convenience"

and "irreparable loss", must also take into consideration the conduct of the parties. In the case at hand, interestingly, plaintiff himself has already raised construction on the best piece of joint land and as such,

.

his action of stopping other co-owner, i.e. defendant from raising

construction on the specific portion of the land, adversely reflect upon his conduct and as such, he is otherwise not entitled to discretionary

relief of injunction. Once plaintiff has been not able to dispute that defendant is co-owner in the suit land and he is in possession over specific portion of the suit land, over which, he is raising construction coupled with the fact that he has already raised construction on the best

portion of the land, he is estopped from claiming discretionary relief of injunction on the ground that since suit land is still unpartitioned, defendant cannot raise construction.

14. Hon'ble Supreme Court in Seema Arshad Zaheer & Ors. Vs.

Municipal Corporation of Greater Mumbai & Ors. (2006) 5 SCC 282, has held as under:-

"29. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are

made out by the plaintiff :

(i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction;

(ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of

defendant's rights, the balance of convenience tilting in favour of plaintiff; and

(iii) clear possibility of irreparable injury being caused

to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands."

15. It can be safely inferred from aforesaid law laid down by this court that grant of temporary injunction is not to be claimed by a party as a matter of right nor can be denied by a court arbitrarily rather, discretion in this regard is to be exercised by a court on the basis of principles, as have been enunciated in the aforesaid judgment."

15. Since, in the case at hand, plaintiff has not been able to dispute

the factum with regard to his having raised construction over suit land,

.

that too despite there being decree of permanent prohibitory injunction

granted by learned Senior Civil Judge, Court No.1, Rohru, in an earlier

suit filed by defendant, there was no occasion for learned courts below

to restrain the defendant from raising construction on suit land. Since

with the raising construction on one portion of suit land, very status of

the land has severed, ground as is being sought to be raised with

regard to joint ownership, is of not much relevance.

16. Leaving everything aside, this court, having taken note of

adverse conduct of the plaintiff, whereby he despite there being decree

of injunction dated 18.4.2019 against him, proceeded to raise

construction on the suit land, is of the view that the plaintiff is not

entitled to discretionary relief, as such, order granting ad-interim

injunction passed by courts below are not sustainable in the eye of law.

17. Consequently in view of discussion and law, this court finds

merit in the petition and same is allowed. judgment dated 11.3.2022

passed by learned Additional District Judge (CBI Court) Shimla,

Himachal Pradesh, camp at Rohru in Civil Misc. Appeal No. 11-R/14 of

2020, and order dated 22.8.2020 passed by Civil Judge, Court No. II,

Rohru, District Shimla, Himachal Pradesh in CMA No. 65-06 of 2020 in

Civil Suit No. 38 of 2020, titled Rottam Lal v. Satya Devi are quashed

and set aside. Application filed by the plaintiff under Order XXXIX, rules

1 and 2 CPC, is dismissed. Any observation made herein, shall not

have any bearing on the civil suit filed by the plaintiff or the execution

proceedings filed by defendant, which shall be decided on their own

.

merit by the respective courts.

18. The petition stands disposed of in the afore terms, alongwith all

pending applications.

                                                   (Sandeep Sharma)
                                                        Judge
     December 13, 2022
         (vikrant)




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