Himachal Pradesh High Court
____________________________________________________________ vs Smt. Sheetal And Others on 8 January, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
CMPMO No. 428 of 2020
.
Reserved on: January 6, 2021
Decided on: January 8, 2021
____________________________________________________________
Ramesh Kumar .........Petitioner
Versus
Smt. Sheetal and others ...Respondents
____________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
____________________________________________________________
For the petitioner: Mr. Rupinder Singh Thakur,
r Advocate.
For the respondents: Mr. Romesh Verma, Advocate.
THROUGH VIDEO-CONFERENCING
____________________________________________________________
Sandeep Sharma, J. (Oral)
Instant petition filed under Art. 227 of the Constitution of India, takes exception to judgment dated 9.10.2020 passed by learned District Judge, Shimla in CMA No. 37/2020 affirming order dated 5.9.2020 passed by learned Civil Judge, Court No. 3, Shimla, District Shimla in CMA No.303/2020 in Civil Suit No. 47/2020, whereby an application having been filed by the petitioner-plaintiff (hereinafter, 'plaintiff') under Order XXXIX, rules 1 and 2 CPC, seeking therein direction to restrain the Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 08/01/2021 20:17:33 :::HCHP -2-respondents/defendant (hereinafter, 'defendants') from raising any type of construction over land denoted by Khasra No. 176, .
situate in Mohal Tafera, Post Office Kali Hatti, Hadbast No. 151, Sub Tehsil Dhami, District Shimla, Himachal Pradesh (hereinafter, 'suit land') during the pendency of suit, came to be dismissed.
2. For having bird's eye view of the matter, certain undisputed facts as emerge from the pleadings adduced on record by respective parties are that the plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from raising construction on suit land, as detailed herein above, and for granting mandatory injunction directing defendant No.1 to remove construction raised by him during the pendency of the suit, in the court of learned Civil Judge (Junior Division), Shimla, averring therein that he became co-owner to the extent of 843/255709 shares measuring 25-57-09 hectares in land comprised in Khewat Khatauni No. 1/1 to 9, total Khasra 133, measuring 25-57-09 Hectares, situate in Mohal Tafera, Post Office Kali Hatti, Hadbaast No. 151, Sub Tehsil Dhami, District Shimla, by virtue of sale deed dated 1.12.2014. Plaintiff also claimed that at the time of execution of aforesaid deed dated 1.12.2014, he was also delivered possession of Khasra Nos. 176 and 168, whereafter he had raised a Dhara on such land.
::: Downloaded on - 08/01/2021 20:17:33 :::HCHP -3-Plaintiff also averred that since suit land is joint inter se parties, two co-owners namely Mukesh Kumar and Aruna Kumari, filed .
partition proceedings before competent Authority and during such proceedings, Tatima was issued by revenue agency depicting therein his possession on Khasra No. 176 i.e. suit land. Plaintiff further claimed before learned trial Court that in the aforesaid partition proceedings, respondent No.3 was being represented by respondent No. 2 on the strength of General Power of Attorney executed by respondent no.3, as such, he was fully aware of the factum with regard to sale of land to various persons, including him. Plaintiff alleged in the suit that respondent No.2 being General Power of Attorney of respondent No.3 got transferred some land by way of gift deed/sale deed in favour of his wife i.e. defendant No.1, and such, transactions are illegal and sham. Lastly, the plaintiff averred in the suit that on 8.6.2020, he, after having noticed factum with regard to unauthorized construction being carried out by respondent No.1 on suit land, has filed instant suit for permanent prohibitory injunction, restraining defendant No.1 from interfering in the suit land. Alongwith aforesaid suit, plaintiff also filed an application under Order XXXIX, rules 1 and 2 CPC, seeking interim injunction to restrain the defendants from raising any construction over the suit land till final disposal of the case.
::: Downloaded on - 08/01/2021 20:17:33 :::HCHP -4-3. Defendants, in their reply to the application, while admitting factum with regard to purchase of shares in the suit .
land to the extent of 843/255709, measuring 00-08-43 hectares in the joint land, comprised in Khewat Khatauni No. 1/1 to 9, total measuring 25-59 Hectares, categorically denied that exclusive possession of Khasra Nos. 176 and 168 was delivered to the plaintiff. Defendants claimed before learned trial Court that total area of Khasra No. 176 is 00-88-57 hectares and that of Khasra No. 168 is 00-43-05 hectares, whereas, plaintiff purchased area much lesser than the total area of Khasra Nos.
176 and 168 and as such, there was no occasion to deliver him possession qua entire area of aforesaid Khasra numbers.
Defendants averred in their reply that defendant No.3 and his sons came in possession of Khasra Nos. 176 and 168, after the death of their predecessor-in-interest i.e. Dhani Ram, whereafter, they transferred some portion of suit land to defendant No.1. Defendants, claimed before learned trial Court that after purchase of aforesaid land, defendant No. 1, started construction work in March, 2019 and till date, she has spent a sum of Rs.35.00 Lakh on account of development of land as well as construction of boundary walls. Defendants specifically denied that the factum with regard to construction on suit land came to the knowledge of plaintiff on 8.6.2020 and they claimed ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP -5- before learned trial Court that they have no objection in case construction is carried out by plaintiff in some other portion of .
suit land, which is still vacant.
4. On the basis of aforesaid pleadings adduced on record by respective parties as well as evidence led on record, learned trial Court dismissed the application filed under Order XXXIX, rules 1 and 2 CPC.
5. Being aggrieved and dissatisfied with the aforesaid findings returned by learned trial Court, plaintiff preferred an appeal before learned District Judge, Shimla, who vide judgment dated 9.10.2020, dismissed the appeal, as a consequence of which, order passed by learned trial Court dismissing the application of plaintiff, came to be upheld. In the aforesaid background, plaintiff has approached this Court in the instant proceedings.
6. I have heard learned counsel for the parties and perused the material available on record.
7. It is well settled that before grant of injunction and considering prayer for discretionary relief, court must be satisfied that the party praying for relief has a prima facie case and balance of convenience is also in its favour. While granting injunction, if any, court is also required to ascertain whether refusal to grant injunction would cause irreparable loss to such ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP -6- party. Apart from aforesaid well established parameters/ingredients, conduct of a party seeking injunction .
is also of utmost importance. Reliance in this regard is placed upon judgment rendered by Hon'ble Apex Court in case M/S Gujarat Bottling Co.Ltd. & Ors. v. The Coca Cola Co. & Ors., AIR 1995 2372. In case a party seeking injunction fails to make out any of the 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 Mahadeo Savlaram Shelke v. The Puna Municpal Corpn., J.T. 1995(2) S.C. 504 relying upon its earlier judgment in 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 for the grant of ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP -7- 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 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 its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."::: Downloaded on - 08/01/2021 20:17:33 :::HCHP -8-
8. Careful perusal of aforesaid judgment rendered by Hon'ble Apex Court clearly suggests that existence of three .
basic ingredients i.e. prima facie case, balance of convenience and irreparable loss or injury is mandatory for passing an order of injunction under Order XXXIX, rules 1 and 2 CPC. It is also well settled by now that aforesaid thre ingredients are not only to exist but must coexist. In this regard, reliance is placed upon judgment rendered by Hon'ble Apex Court in Best Sellers Retail (India) Private Ltd. vs. Aditya Birla Nuvo Ld. And others, (2012) 6 SCC 792, wherein, it has been held as under:
"29. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable.
30. In Dalpat Kumar & Anr. v. Prahlad Singh & Ors. [(1992) 1 SCC 719] this Court held:
"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."::: Downloaded on - 08/01/2021 20:17:33 :::HCHP -9-
36. To quote the words of Alderson, B. in The Attorney-General vs. Hallett [153 ER 1316: (1857) 16 M. & W.569]:
.
"I take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated by any decree which the Court can pronounce in the result of the cause."
9. Hon'ble Apex Court in Dalpat Kumar and another vs. Prahlad Singh and others (1992) 1 SCC 719, has categorically held that prima facie case is not to be confused with prima facie title, which requires to be established on evidence at the trial.
Mere 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. Since purpose of temporary injunction is to maintain status quo, court, while granting such relief, should be satisfied that prima facie case has been made out and balance of ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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convenience is in favour of the plaintiff and refusal of injunction would cause irreparable loss and injury to him.
.
10. Since, in the case at hand, it is not in dispute that the parties to the lis are joint owners of suit land and by way of application at hand, injunction is being sought against one of the co-owners, it would be apt to deal with rights and liabilities of cosharers. In this regard, reliance is placed upon judgment rendered by a Division Bench, of Punjab and Haryana High Court in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punjab 528, wherein it has been held as under:
(1) A co-owner has an interest in the whole property and also in every parcel of it.
(2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession, of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner openly asserts his own title and denies that of the other.::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or .
abandonment.
(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.
(7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others rexcept by filing a suit for partition."
11. A Coordinate Bench of this Court in Ashok Kapoor vs. Murtu Devi 2016 (1) Shim. LC 207, had an occasion to deal with the issue of injunction, wherein it, having taken note of various judgments rendered by Constitutional courts, concluded 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 ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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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 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 circumsta nces 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:-
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(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."
12. Now, being guided by aforesaid law laid down by Hon'ble Apex Court as well as other High Courts, this Court would make an endeavour to deal with the issue at hand.
13. Having heard learned counsel for the parties and perused the material available on record, there appears to be no illegality committed by learned Courts below while passing impugned judgment and order, especially when it stands established on record that the parties are joint owners of the suit land and at no point of time, exclusive possession of entire Khasra N. 176 was delivered to the plaintiff. As per material ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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available on record, plaintiff became co-owner of suit land to the extent of 843/255709 shares comprised in Khewat Khatauni .
No. 1/1 to 9, total Khasra 133, measuring 25-57-09 hectares, by way of execution of sale deed dated 1.12.2014. Though the plaintiff in the case at hand, has claimed that at the time of execution of aforesaid sale deed, he was also delivered possession of Khasra Nos. 176 and 168, but such plea of him cannot be accepted, for the reason that total area of Khasra No. 176 is 00-88-57 hectares and that of Khasra No. 168 is 00-43- 05 hectares, whereas, as has been taken note herein above, plaintiff purchased much lesser area than the area of aforesaid Khasra numbers. Though, in the case at hand, plaintiff, while himself stating in the plaint that defendant No.1 was gifted specific area in Khasra No. 176, with a view to establish the factum, if any, of delivery of possession at the time of execution of sale deed dated 1.12.2014, placed heavy reliance upon Tatima allegedly issued by revenue agency in partition proceedings initiated at the behest of co-owners, Mukesh Kumar and Aruna Kumar, wherein he has been shown in possession of Khasra No. 176. However, both the learned Courts below have rightly concluded that presumption of truth cannot be attached to aforesaid document, because Tatima is ordinarily placed reliance for identifying area and by no stretch of ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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imagination, can be used to prove possession of specific party.
In the Jamabandi for the years 1996-97, Dhani Ram, .
predecessor-in-interest of defendant no.3 and Shri Kirpa Ram, were recorded as co-owners in equal shares of land denoted by Khewat Khatauni No. 1/1 to 9, Kita 133, measuring 25-57-09 hectares and Khasra No. 176 is also part of aforesaid land. It is admitted case of the parties that after death of Dhani Ram, his share in his property came to be inherited by defendant No.3 and his sons, Manoj Kumar, Kamlesh Kumar and Mukesh Kumar, who sold 843/255709 shares measuring 00-08-43 hectares in Khewat Khatauni No.1/1 to 9, Kita 133, measuring 25-57-09 hectare, on the basis of Jamabandi for the years 2010-11 to the plaintiff vide sale deed dated 1.12.2014.
Defendant No.3 being General Power of Attorney of defendant No.2, gifted land measuring 00-02-32 hectares out of land comprised in Khasra Nos. 172, 173 and 176 to his wife i.e. defendant No.1, and as such, it is quite apparent that defendant No.1 was gifted specific area in Khasra No. 176 whereas, plaintiff was sold share in the entire joint land by defendant No.3 and his sons. Possession of Khasra No. 176 at the time of execution of aforesaid transaction was with Dhani Ram or his successors, as is evident from Jamabandi for the years 1996-97 and 2015-16. Record reveals that the plaintiff purchased only a ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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particular share in big chunk of land whereas, defendant No. 1 was given a particular share measuring 00-02-32 hectares in .
Khasra Nos. 172, 173 and 176. Plaintiff, with a view to prove his possession qua Khasra No. 176, has claimed that at the time of execution of sale deed, he was also delivered possession, whereafter, he had raised a Dhara on the said land, but the aforesaid Dhara was allegedly dismantled by the defendants, plaintiff lodged an FIR. Plaintiff has also claimed that defendant No.2 himself, misusing Power of Attorney executed in his favour, has snot only sold but given some share of joint land to defendant No.1, but such ground appears to have been taken casually, because, at no point of time, execution of General Power of Attorney as well as making gift of some portion of land on the strength of aforesaid General Power of Attorney came to be laid challenge by defendant No.3 in any court of law. Besides aforesaid grounds, plaintiff has claimed that even on the principle of co-ownership, defendants cannot be allowed to raise construction because, he being co-owner has right over every inch of joint land until partition is effected in accordance with law.
14. Needless to say, presumption of truth is attached to entries recorded in Jamabandi, unless same are repudiated by the opposite party. As has been taken note herein above, in ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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Jamabandi for the years 1996-97, Dhani Ram, predecessor-in-
interest of defendant No.3 and Kirpa Ram were recorded owners .
in possession of Khasra No. 176. Plaintiff came to be recorded in possession of Khasra No. 176 in the Jamabandi for the years 2015-16. Record reveals that defendant No.3 gifted certain share in Khasra No. 176 to defendant No.1 and accordingly, mutation came to be attested in her favour, as such, contention of the plaintiff that he was delivered possession of Khasra Nos.
176 and 168 stands falsified.
15. Since, there is statutory law governing relationship amongst cosharers inter se qua common property as such, matter is to be regulated by rules of justice, equity and good conscience. While considering question of injunction, which needs to be decided on each peculiar fact, it is always for the court to exercise /deny discretion in view of all the facts and circumstances of each case and to find out on which side balance of convenience lies. Though, in the case at hand, material available on record clearly reveals that nature of suit land is joint because, till date, no partition has taken place inter se parties in accordance with law, but plaintiff has not been able to prove that at the time of execution of sale deed dated 1.12.2014, he was given exclusive possession of Khasra No. 176, rather, as per his own case, he had purchased some share ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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measuring 00-08-43 hectares in joint land/suit land. To the contrary, documentary evidence in the form of revenue papers, .
clearly suggests that defendant No. 1 was gifted specific area in Khasra No. 176 and at that time, possession of entire area of Khasra No. 176 was either with Dhani Ram or his successors, as is evident from Jamabandi for the years 1996-97 and 2015-
16.
16. Question with regard to rights of co-shares to raise construction on joint land stands duly settled by a judgment passed by this Court in Jatinder Kumar vs. Kusum Lata, Latest HLJ 2016 (1) (HP) 638, relevant portion whereof is reproduced herein below:
"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.::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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(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 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 r 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."
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. 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 ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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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 act which is detrimental to his interest.
18. In Sanjay Sood vs. Roshan Lal and another, Latest HLJ 2006(1) 209 HPHC, it has been categorically held that when it stands established that co-owner is in exclusive possession of any property and he/she, after having spent huge sum, made some improvements, no injunction should be granted. Similarly, this court in Jatinder Kumar (supra) has categorically held that there can be no strait jacket formula to hold and conclude that in the absence of partition, a co-sharer cannot under any circumstance be permitted to raise construction over the joint land.
19. Similarly, in Kuldeep Singh vs. Jai Singh & Anr, Civil Court Cases 803 (P&H), it has been held that temporary injunction can not be claimed by co-owner against other co-
owner, who has been in exclusive possession of entire or part of property unless the act of co-owner amounts to ouster which is prejudicial or adverse to the interest of co-owner out of possession. In the case at hand, defendants have specifically ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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stated that they shall have no objection, if the plaintiff raises construction on the vacant land.
.
20. In Karam Singh vs. Lakhbir Kaur, 2011 (3) Civil Court Cases 162, it has been held that relief of injunction can be sought by a co-sharer against other co-sharers when such a co-sharer happens to be in exclusive possession of the land to the exclusion of other co-sharers, but when the possession of all the co-sharers is joint, relief of injunction cannot be sought by either of the co-sharers and the only relief which is available to the co-sharer is to seek partition by metes and bounds.
21. Having carefully perused the material available on record, this Court is in total agreement with the findings returned by learned Courts below that the plaintiff has not only failed to show prima facie case in his favour rather, none of other ingredients i.e. balance of convenience and irreparable loss or injury enabling this Court to exercise discretion, are missing, as such, no fault, if any can be found with the judgment and order passed by learned Courts below.
22. Hon'ble Apex 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 ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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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."
23. 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.
24. During proceedings of the case, learned Counsel appearing for the plaintiff, placed reliance upon various judgments rendered by Hon'ble Apex Court as well as this Court i.e. Parduman Singh and another vs. Naruin Singh and another (1991 CCC 803 (HP), Nagesh Kumar vs. Kewal Krishan (AIR ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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2000 Himachal Pradesh 116), Shiv Chand vs. Manghru and others (2007(1) Shim. LC 389), Prabhu Nath and another vs. .
Sushma (2014 (2) Shim. L.C. 1003). Having carefully perused the aforesaid judgments pressed into service by learned Counsel appearing for the plaintiff, while asserting claim of the plaintiff, this Court finds that ratio laid down in aforesaid judgments is with regard to rights of cosharer in the joint land, particularly where nature of the suit land is joint and land has not been changed and there is no kind of construction activity by any of cosharers. Very gist of the aforesaid judgments is that possession of one cosharer is possession of all the cosharers in joint land till the time same is partitioned by metes and bound.
However, in the case at hand, as clearly emerges from the pleadings as well as documents adduced on record that none of the parties have come with the plea that they are in joint possession of the suit land, rather, plaintiff himself has not come up with specific plea that he is in possession of any portion of joint land, rather, claim of plaintiff is that he is in exclusive possession of Khasra No. 176 by way of sale deed executed in his favour, but, as has been taken note herein above, there is no evidence worth credence available on record, suggestive of the fact that plaintiff was delivered possession of ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP
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entire area of Khasra No. 176, rather, he has purchased minor share, as detailed above.
.
25. Consequently, the petition at hand is dismissed alongwith all pending applications. Interim orders, if any, are vacated. However, it is clarified that the construction, if any, raised during the pendency of suit, shall abide by final outcome of the suit filed by the plaintiff.
(Sandeep Sharma) Judge January 8, 2021 (Vikrant) ::: Downloaded on - 08/01/2021 20:17:33 :::HCHP