Himachal Pradesh High Court

Sh. Pyar Lal vs Dharam Prakash on 28 July, 2022

Bench: Sandeep Sharma

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                ON THE 28th DAY OF JULY, 2022
                RESERVED ON: 14.07.2022
                            BEFORE
                  HON'BLE MR. JUSTICE SANDEEP SHARMA
            CIVIL MISC. PETITION MAIN (ORIGINAL) NO.431 of 2020




                                                                  .

    Between:-

    DHARAM PRAKASH, SON OF LATE





    SH. PYAR LAL, RESIDENT OF
    VILLAGE BAHALI, POST OFFICE
    CHALAHAL, SUB TEHSIL DHAMI,
    DISTRICT SHIMLA, H.P., AGED ABOUT
    54 YEARS.
                                                     ......PETITIONER/PLAINTIFF



    AND

    JEET RAM, SON OF LATE SH. DEVI

    (BY MR. PARESH SHARMA, ADVOCATE)

    DASS,   RESIDENT  OF  VILLAGE
    MANDRI, POST OFFICE CHALHHAL,
    SUB   TEHSIL   DHAMI, DISTRICT
    SHIMLA, H.P.



                                              ......RESPONDENT/DEFENDANT

    (BY MR. NARESH K. SHARMA, ADVOCATE)




    Whether approved for reporting? Yes.





                 This petition coming on for orders this day, the Court passed the
    following:
                               ORDER

Instant petition filed under Article 227 of the Constitution of India,

is directed against the judgment dated 05.11.2020, passed by learned District

Judge, Shimla, H.P. in Civil Miscellaneous Appeal No. 25/S/14 of 2020, titled

Jeet Ram vs. Dharam Prakash, thereby allowing the appeal under Order 43

Rule 1(r) of CPC, reversing the order dated 07.08.2020, passed by learned

Civil Judge, Court No. 4, Shimla, District Shimla in CMA No. 287/2017,

whereby direction came to be issued to both the parties to suit, to maintain

status quo qua the nature, possession and construction over the suit land till

the suit is not decided on its merits or the suit land is not partitioned by metes

and bounds, whichever is earlier.

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

petitioner/plaintiff (hereinafter, as 'plaintiff) filed a suit for permanent prohibitory

injunction restraining the defendant/respondent(hereinafter, as defendant) from

changing nature, taking forcible possession or digging/raising any structure in

any manner through himself or through his agents and servants on the suit

land comprised in Khewat No.7, Khatauni No. 35, Kita 8, measuring 03-30-29

hectares and Khewat No.7, Khatauni No.36, Khasra Nos. 237, 38, 407, 419,

491, 727, 819, 831, 878, 1003 1059, 1105, 1114 and 1234, kitas 14 measuring

01-80-29 hectares, situate at Moha Chalahal, Patwar Circle Halog, Sub Tehsil

Dhami, District Shimla, H.P. Plaintiff claimed that he as well as defendant are

co-owners in the suit land, as described hereinabove and his house is situated

over Khasra No.877 and defendant is recorded in possession of Khasra No.

878. Plaintiff claimed that suit land is valuable because road passes abutting

to this land. He alleged that recently, defendant started raising construction on

the suit land without getting the land partitioned. Along with aforesaid suit,

plaintiff also filed an application under Order 39 Rule 1 & 2 CPC, praying

therein to restrain defendant from raising any construction on the suit land till

the same is partitioned by metes and bounds.

3. Prayer made in the aforesaid application, came to be opposed by

defendant by filing reply, whereby he denied that he and plaintiff are recorded

co-owners in the suit land, but claimed that he is in exclusive possession of the

land by way of family settlement and as such, has every right to raise

construction thereupon. Defendant also claimed that he is constructing four

rooms structure on a small piece of land i.e. 4 biswas, whereas, his share in

entire Khata is 33 biswas. Defendant also claimed that other co-owners have

no objection for raising such construction and they have already constructed

houses on the best pieces of the joint land adjoining to the road and as such,

plaintiff can not raise any objection for raising construction by the defendant.

Defendant submitted that site has already been developed and construction of

the beams and pillars of the ground floor have been completed and therefore,

there is no cause of action for the plaintiff to restrain the defendant from raising

construction over the suit land. Learned court below having taken note of the

aforesaid pleadings adduced on record by the respective parties, allowed the

application filed under Order 39 Rule 1 & 2 CPC and directed the parties to

maintain status quo qua nature and possession over the suit land. Being

aggrieved and dissatisfied with the aforesaid status quo order passed by

learned court below, defendant filed appeal under Order 43 Rule 1(r) of CPC in

the Court of learned District Judge, Shimla, which came to be allowed vide

order dated 05.11.2020 (Annexure P-1). In the aforesaid background, plaintiff

has approached this Court in the instant proceedings, praying therein to

restore the aforesaid order dated 07.08.2020, passed by learned Civil Judge,

Court No.4, Shimla, directing parties to maintain status quo, after setting aside

the judgment dated 05.11.2020, passed by learned District Judge, Shimla.

4. I have heard the learned counsel representing the parties and

gone through the record.

5. 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

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

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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."

6. Sh. Paresh Sharma, learned counsel representing the plaintiff

argued that once it stands admitted inter se parties that suit land is joint inter

se them and same has not been partitioned, order of status quo, passed by

court below cannot be faulted with. He submitted that it is well settled by now

that on the joint land, there is a right of every co-owner over every inch of such

land. He further submitted that if defendant is interested to raise construction

on the suit land, the best course to him is to get the suit land partitioned. Mr.

Naresh Sharma, learned counsel representing the defendant while supporting

the judgment passed by learned District Judge, submitted that since factum

with regard to defendant's possession over the suit land by family settlement is

not disputed, he could not be stopped from constructing the house on the land,

which was admittedly in his possession. He also submitted that since, at no

point of time, it ever came to be denied on behalf of the plaintiff that defendant

has already raised construction of beams and pillars of the ground floor, no

cause of action can be said to have been accrued in favour of the plaintiff to

restrain the defendant from raising construction over the suit land.

7. No doubt, until partition is complete, parties are to be treated as

co-owners in the joint land. Similarly, there can't be any dispute 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 co-owners have equal rights and coordinate interest in the property though

their shares may 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 this Court as well as Hon'ble Apex 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, it is also well settled that mere

fact that one of the party is recorded as co-owner of the suit land cannot

deprive or suppress the right of other co-owners 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.

r (iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a

co-owner 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

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plaintiff's conduct is free from blame and he approaches the Court with clean hands."

8. Principles, as have been culled out in the aforesaid judgment, have

been further reiterated in the judgment dated 09.09.2020, passed by this Court

in case titled Suresh Kumar v. Pooja in CMPMO No. 331 of 2020. If the

aforesaid judgment passed by this Court is read in its entirety, one of the co-

sharer cannot be disentitled from raising construction on the joint land, unless

and until, other co-owner is prejudiced by his act of construction.

9. In the case at hand, both the parties are recorded as co-owners

in a big chunk of joint land. Admittedly, defendant is raising construction only

on 4 biswas of land, whereas, his share in the entire suit land is 33 biswas.

Interestingly, in the case at hand, plaintiff has objected to the raising of

construction on the plea that suit land is valuable, as road passes away

besides his land. However, record reveals that plaintiff himself has already

raised construction on the valuable piece of suit land abutting to the road.

Plaintiff as well as other co-owners have already constructed their houses

adjoining to the road and much area is already vacant, which is available for

partition. House of the plaintiff is over Khasra No. 877, which is situated

besides the road. None of the other co-owners save and except plaintiff ever

raised objection with regard to construction being raised by the defendant.

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

and other co-owners have also constructed their houses adjoining to the road

and vacant area of joint land, is still left, it cannot be said that construction by

defendant, if permitted, would amount to ouster of the plaintiff from the suit

land. Since defendant herein, is intending to raise construction over 4 biswas

of land, which is already in his possession, no prejudice shall be caused to the

plaintiff in case, he is permitted to go ahead with construction. Moreover,

when plaintiff himself has already raised construction on his portion of land,

equity demands that defendant is also permitted to raise construction on the

land in his possession.

10. 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 relief of injunction on

the ground that since suit land is still un-partitioned, defendant cannot raise

construction.

11. 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 r 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."

12. 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.

13. In the case at hand, plaintiff has been not able to establish prima

facie case in his favour, rather equity is on the side of the defendant, who has

successfully proved on record that he is raising construction on the land under

his possession, that too, on very small portion, i.e. 4 biswas, whereas, his

share in entire suit land is more than 33 biswas. Since, petitioner has already

raised construction on the best portion of the land under his possession, no

irreparable loss and injury can be said to have been caused to him on account