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2021 DIGILAW 498 (HP)

MOHAN v. MAN SINGH

2021-08-02

AJAY MOHAN GOEL

body2021
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this petition filed under Article 227 of the Constitution of India, the petitioners/plaintiffs have challenged the order passed by the Court of learned Civil Judge, Court No. 2, Sundernagar, District Mandi, in CMA No. 165-VI/2020, filed in Civil Suit No. 86-1 of 2020, vide which, an application under Order 39, Rules 1 and 2 of the Civil Procedure Code filed by the present petitioners stood dismissed by the said Court as well as the judgment dated 23.02.2021, passed by the Court of learned Additional District Judge, Sundernagar, District Mandi, in Civil Miscellaneous Appeal No. 38 of 2020, titled as Mohan and others vs. Shri Man Singh and others, vide which, the order passed by learned Trial Court stood affirmed by the learned Appellate Court by dismissing the appeal preferred by the present petitioners against the order of the learned Trial Court. 2. Brief facts necessary for the adjudication of the present petition are that the petitioners herein, have filed a suit for permanent prohibitory injunction against the respondents with regard to the suit land on the ground that the entire land is joint between the parties and other co-sharers and no co-sharer has a right to construct upon the same. Yet, respondents started raising construction on best portion of the land adjoining to the Gawajal to Kandyah road, which led to filing of the suit as also the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, wherein a prayer was made that during the pendency of the civil suit, the respondents be injuncted from carrying out any construction over the best portion of the suit land till the same was partitioned. 3. This application has been dismissed by the learned Trial Court vide order dated 17.10.2020 by holding that it was a matter of record that other co-sharers had raised construction upon the suit land which was joint and which construction was never objected to by the plaintiffs. Learned Trial Court also held that the fact that no objection, at any stage, was raised by the plaintiffs at the time when other co-sharers were raising the construction also strengthened the pleadings of the defendants with regard to their family arrangement. Learned Trial Court also held that the fact that no objection, at any stage, was raised by the plaintiffs at the time when other co-sharers were raising the construction also strengthened the pleadings of the defendants with regard to their family arrangement. Learned Court also held that there was enough suit land available and it was not the case of the plaintiffs that if the respondents are permitted to carry out the construction, then no land would be available to other co-shares. On these bases, learned Trial Court held that the plaintiffs had failed to prove any irreparable loss or injury in the event of denial of the interim relief to them. 4. These findings stand upheld by the learned Appellate Court which observed that there was no prima facie case in favour of the plaintiffs as no objection was raised by them when other co-shares carried out the construction of their houses and shops upon the suit land, who according to the defendants, were close relatives of the plaintiffs. Learned Appellate Court also held that learned Trial Court had rightly highlighted the conduct of the applicants/plaintiffs which was sufficient to decline the relief of temporary injunction. It also held that even otherwise, the remedy available to the plaintiffs was to seek partition of the joint land and not the relief of injunction. On these bases, learned Appellate Court dismissed the appeal filed by the plaintiffs/ appellants. 5. I have heard learned Counsel for the parties and also gone through the orders passed by the learned Courts below. 6. Herein both the learned Courts below have returned the findings to the effect that the plaintiffs had not objected to the construction of houses and shops on the joint land by other co-shares, namely, S/Sh. Nand Lal, Pyare Lal and Ashok Kumar. 7. During the course of arguments, learned Counsel for the petitioners could not seriously dispute the findings returned by learned Courts below, except by making a submission that the construction which was raised by other co-shares was without their consent. 8. Be that as it may, it is a matter of record that there is nothing on record to suggest that the construction carried out by other co-sharers was ever objected to by the plaintiffs. 8. Be that as it may, it is a matter of record that there is nothing on record to suggest that the construction carried out by other co-sharers was ever objected to by the plaintiffs. Neither any civil suit nor any other proceedings were initiated to demonstrate that the act of other co-shares was ever objected to by the plaintiffs. This demonstrates that the petitioners chose selectively the act of the present respondents of carrying out the construction on the joint land for the purpose of approaching the Court for the first time. No answer worth credence has come forth as to why they did not object to the constructions carried out by other co-shares on the joint land during the course of the arguments. In this view of the matter, this Court is of the view that the petitioners have not been able to demonstrate that either prima facie case or balance of convenience is in their favour or in the event of non grant of interim relief, the petitioners could have stated to have suffered irreparable loss or injury. 9. Further in exercise of powers so conferred upon it under Article 227 of the Constitution of India, this Court is not to act as an appellate Court. If the Courts below take a view, which is possible on the basis of facts and material available before them, then ordinarily, this Court does not interferes with such just orders or decisions. The jurisdiction under Article 227 of the Constitution of India is only to be exercised in the cases where there is perversity in the order(s) impugned. 10. Coming to this case, this Court does not finds any perversity in the adjudications made by both the learned Courts below as the view which has been taken by learned Courts below is one of the possible views, which on the basis of material before them, could have been taken by them. Therefore, as this Court does not finds any merit in the present petition, the same is accordingly dismissed. 11. At this stage, Mr. G.R. Palsra, learned Counsel for the petitioners submits that it may be clarified that the construction, if any, raised by the respondents during the pendency of the suit, shall abide by the adjudication thereof and parties shall not claim any equity. Ordered accordingly. 12. 11. At this stage, Mr. G.R. Palsra, learned Counsel for the petitioners submits that it may be clarified that the construction, if any, raised by the respondents during the pendency of the suit, shall abide by the adjudication thereof and parties shall not claim any equity. Ordered accordingly. 12. It is clarified that the observations which have been made while disposing of this petition are only for the purpose of adjudication thereof only and learned trial Court shall decide with the civil suit in accordance with law, without being influenced by any of the observations made hereinabove by this Court. 13. The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.