Anjali vs . Sawan Lata And Others.
2023 Latest Caselaw 13348 HP

Anjali Vs. Sawan Lata and others.

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RSA No. 175 of 2023

Order reserved on: 17.8.2023

12.09.2023 Present: Mr. Suneet Goel, Advocate, for the appellant.

None for respondents no. 1 to 3.

Mr. Neeraj Gupta, Sr. Advocate, with Ms. Rinki

Kashmiri, Advocate, for respondent no. 4.

CMP No.9558 of 2023

The applicant/appellant (plaintiff before the

learned Trial Court) filed application seeking an ad-interim

injunction, restraining the non-applicants/respondents

from alienating, encumbering, creating charge upon or

interfering with the suit land and/or changing its nature

during the pendency of the present appeal. It has been

asserted that applicant has filed a Regular Second Appeal

before this Court, which is pending for admission. The

applicant has a strong, prima facie, case in her favour. The

judgments and decrees were passed by the learned Courts

below without appreciating the evidence adduced by the

parties. The respondents are likely to alienate, encumber,

create charge or interfere with the suit land; hence the

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application for seeking the relief mentioned above.

2. The application was opposed by filing a reply,

taking preliminary objection regarding the lack of

maintainability. The contents of the application were denied

on merits. It was asserted that the suit filed by the applicant

was dismissed by the learned Courts below. The applicant

was not found in physical possession of the suit land. The

respondents have purchased the share of Smt. Sawarn Lata

vide Sale Deed No. 1620, registered on 16.11.2002. The

respondents are in physical possession of the suit land and

any order passed by this Court would cause difficulties to the

respondents. Learned Courts below had rightly appreciated

the evidence and there is no infirmity with the findings

recorded by the learned Courts below. Any relief granted to

the applicant would gravely prejudice the respondents. The

respondents purchased the property to develop it; therefore,

it was prayed that the present application be dismissed.

3. I have heard Mr Suneet Goel, learned counsel for

the applicant/appellant and Mr. Neeraj Gupta, learned Senior

Counsel, assisted by Ms. Rinki Kashmiri, Advocate, for

respondent no. 4 and have gone through the record carefully.

4. Mr Suneet Goel, learned counsel for the

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applicant/appellant submitted that the parties are co-

owners of the suit land and a co-owner does not have any

right to raise construction over the land co-owned by

him/her, any alienation during the pendency of the appeal

will complicate the matter and will prejudice the rights of the

applicant/appellant. Therefore, he pleaded that the present

application be allowed and the respondents be restrained

from raising construction, changing the nature of the suit

land and alienating the same during the pendency of the

appeal.

5. Mr. Neeraj Gupta, learned Senior Counsel,

submitted that the applicant/appellant cannot seek any

injunction on the grounds of her being a co-sharer unless

she has shown any prejudice. No prejudice was shown in the

present case; therefore, he prayed that the present

application be dismissed.

6. I have given considerable thought to the rival

submissions at the bar and have gone through the record

carefully.

7. The applicant/appellant filed a civil suit for

declaration that Mohini Devi, the previous owner, had

executed a Will in favour of the plaintiff. The sale deed

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executed in favour of present respondent no. 4 is bad for

want of competence. Both the learned Courts below

concurrently held that the execution of the Will propounded

by the applicant/appellant was shrouded in suspension and

could not be relied upon. These are pure findings of facts and

are to be taken as correct in these proceedings where only a

prima facie case is to be seen. Thus, the applicant/appellant

does not have any prima facie case to seek an injunction

against respondent no. 4, who had purchased the property

vide registered Sale Deed No.1620.

8. Even if the parties are taken to be co-owners, that

is not sufficient to grant an injunction. The law relating to

the co-sharers was considered by this Court in Ashok Kapoor

v. Murtu Devi, 2015 SCC OnLine HP 1422= 2016 (1) Shimla Law

Cases 207 and it was held that a co-sharer cannot be

restrained from raising construction on the joint land on the

ground that he has no right to raise construction on the joint

land. After an exhaustive review of the case law, it was held

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

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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 rthe 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

co-owner out of possession can seek an injunction to prevent such an 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 the exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience."

9. This judgment was followed in Piar Chand and

Others Versus Sandhya Devi and Others 2017 (2) Shim.LC 1040

and it was held after quoting the above para that where the

plaintiff had failed to prove that the proposed construction of

the defendants will diminish the value or utility of the property

or the same is detrimental to the interest of other co-owners,

including the plaintiff, the suit could not have been decreed.

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10. Similar is the judgment in Ramesh Kumar v. Sheetal,

2021 SCC OnLine HP 89 = 2021(1) Shim.LC 377, wherein it was

observed:

"17. It is quite apparent from the aforesaid exposition of

law that 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. The mere making of construction or improvement in the common property does not amount

to ouster rather, if by any 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. If the acts of the

co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such an act, which is

detrimental to his interest."

11. A similar view was taken in Rattan Singh vs. Som

Dutt and Others 2023 (1) Shim. LC 446, wherein it was observed:

"11. From the pleadings and record, two facts become clear, one is that the suit land is technically joint inter se parties and second, the defendants are co-owners in the suit land. It is settled law that a co-sharer cannot seek a restraint order against another co-sharer merely because the land is joint, until and unless the plaintiff succeeds in proving that such construction would amount to his ouster. If the plaint and the petition filed in this court are seen, there are no grounds pleaded qua question of ouster or prejudice, if any, being caused to the plaintiff. The plaintiff admittedly has raised

construction on the suit land and has filed the suit,

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when defendants started raising construction."

12. Therefore, a co-sharer cannot be restrained from

raising construction over the joint land unless it is shown

that such an act would constitute prejudice and the mere

raising of construction does not amount to any prejudice as

laid down by this Court.

13. In the present case, the applicant/appellant has not

pleaded any prejudice by the construction proposed to be

raised by the respondents; hence, the injunction cannot be

issued on the ground that the applicant/appellant is a

co-owner and a co-owner has no right to raise construction

over the joint land.

14. In case, the injunction prayed for is withheld, the

applicant/appellant will not suffer any irreparable loss and

injury that cannot be compensated in terms of money, as the

applicant/appellant has failed to establish any right to herself

to restrain the respondents from raising construction as per

the law laid down by this Court, whereas the respondents will

suffer as they will be deprived of the use of the land to which

they are entitled being the co-sharers; therefore, the balance

of convenience does not exist in favour of the

applicant/appellant for seeking any injunction restraining

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the respondents from raising construction over the joint land.

15. In case respondent no. 4 is permitted to alienate the

property during the pendency of the suit, it will lead to a

multiplicity of proceedings. Therefore, it is appropriate that

the parties be directed to maintain status quo qua title of the

suit property during the pendency of the proceedings to

protect the rights of both the parties and to avoid the

multiplicity of the proceedings. Such a course of action will

not harm either of the parties and will preserve the property

in the state in which it exists.

16. Therefore, the present application is partly allowed

and the parties are directed to maintain status quo qua title of

the suit land during the pendency of the proceedings before

this Court.

The present application stands disposed of. The

observations made hereinabove will remain confined to the

disposal of the application and will have no bearings,

whatsoever with the merits of the case.

(Rakesh Kainthla) Judge 12th September, 2023 (Chander)