Shiv Dayal vs . Dinesh Kumar And Others.
2023 Latest Caselaw 13750 HP

Shiv Dayal vs. Dinesh Kumar and others.

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RSA No.54 of 2022

Order reserved on: 01.09.2023

15.09.2023 Present: Mr. P.K. Verma, Advocate, for the appellant.

Mr.Kamlesh Kumari, Advocate, for respondent No.1.

Respondent No.2 to 4 ex parte vide order dated

27.06.2023.

CMP No.2392 of 2022

The present application has been filed to restrain

the respondents/defendants from changing the nature and

possession of the suit land till its partition by metes and

bounds. It has been asserted that the applicant has filed an

appeal. A perusal of the grounds of appeal shows that there is

a good prima face case in favour of the applicant and the

appeal is likely to be allowed. Learned Additional District

Judge, Ghumarwin has set aside the judgment and decree

dated 06.11.2018 passed by the learned Trial Court. The

judgment and decree of the learned First Appellate Court was

passed without appreciating the reasons given by the learned

Trial Court. The parties are co-owners and in case, the

respondents/defendants are not restrained from changing

the nature and possession of the suit land till its partition,

the applicant will suffer an irreparable loss and injury, which

cannot be compensated in terms of money; hence, it was

prayed that this application be allowed and interim

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injunction be granted in favour of the applicant.

2. The application is opposed by filing a reply taking

preliminary objections regarding the suit being bad for non-

joinder of necessary parties and lack of cause of action. The

contents of the application were denied on merits. It was

asserted that the judgment and decree passed by the learned

First Appellate Court are well reasoned and based upon the

evidence. Respondent No. 1 has purchased a specific Khasra

number and there is no question of partition; hence, it was

prayed that this application be dismissed.

3. I have heard Sh. P.K. Verma, learned counsel for the

applicant and Ms. Kamlesh Kumari, learned counsel for

respondent no.1.

4. Sh. P.K. Verma, learned counsel for the applicant

submitted that the parties are co-owners of the suit land. In

case, the respondents are permitted to change the nature of

the suit land, the applicant will suffer an irreparable loss and

injury, which cannot be compensated in terms of money. He

prayed that the present application be allowed and the

respondents be restrained from changing the nature of the

suit land.

5. Ms. Kamlesh Kumari, learned counsel for

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respondent No.1. submitted that the co-sharer is not entitled

to seek an injunction without establishing the prejudice. The

applicant has not pleaded any prejudice; therefore, it was

prayed that this application be dismissed.

6. I have given considerable thought to the rival

submission at the bar and have gone through the records

carefully.

7. Both the learned Courts below have found the

parties to be the co-owners. 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 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

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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

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."

8. 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 lead evidence to prove that the

proposed construction of the defendants will diminish the

value or utility of property or the same is detrimental to the

interest of other co-owners, including the plaintiff, the suit

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could not have been decreed.

9. 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."

10. 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

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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, when defendants Started raising construction."

11. 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 High Court.

12. The plaintiff asserted in Para 1 of the plaint that he

had purchased the suit land from defendant no. 1. The

defendant no. 1 was in possession as per the family

arrangement and he had sold the specific portion of the land.

He had put the plaintiff in possession and executed an

affidavit to this effect. He asserted in para 3 that defendant

no. 2 has also purchased the land from defendant no. 1 and

has become the owner. He stated in para 4 that the

defendants have no right to raise construction. The plaintiff

has not asserted any prejudice to him by the construction

being raised by the defendants. He has not filed a copy of the

sale deed to prove that the specific portion of the land was

sold to him. He relied upon the photocopy of the affidavit

executed by Chaman Lal (Mark 'X'), wherein it was

mentioned that the possession of Khasra No. 410 and 537

was delivered to the purchaser; however, the copy of

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Jamabandi for the year 2006-07 (Ext.P-1) shows that Khasra

No. 410 and 537 are recorded to be in the joint possession of

the land. Chaman Lal was not examined before the Court to

prove any family arrangement or the delivery of a specific

portion of the land. Therefore, prima facie, the

applicant/plaintiff cannot seek an injunction on the premise

that he has purchased a specific portion of the land and was

put in possession of the specific portion.

13. Therefore, the applicant has no prima facie

arguable case in his favour to restrain the respondents from

raising construction or changing the nature of the suit land.

He cannot seek an injunction to protect the possession, as

there is no satisfactory evidence to establish his possession.

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

applicant will not suffer any irreparable loss and injury,

which cannot be compensated in terms of money, as the

applicant has failed to establish any right in himself to

restrain the respondents/defendants from raising

construction, while the respondents will suffer, as they will

be deprived of the use of the land to which they are entitled

to being the co-owners.

15. Hence, the applicant is not entitled to the

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injunction prayed for.

16. In view of the above, the present application fails

and the same is dismissed. The observations made

hereinbefore shall remain confined to the disposal of the

application and will have no bearing, whatsoever, on the

merits of the case.

RSA No.54 of 2022

The matter be listed for admission in due course.

(Rakesh Kainthla) Judge

15th, September, 2023 (pathania)