ORDER : An application moved by the plaintiff under Order 39 Rule 1 and 2 of the Code of Civil Procedure (CPC), seeking temporary injunction against the defendants, has been concurrently allowed by the learned Courts below. Feeling aggrieved, the defendants have assailed these orders by means of the present petition filed under Article 227 of the Constitution of India. The parties are hereinafter referred to as they were before the learned Trial Court. 2. Facts:- 2(i). Plaintiff filed a civil suit under Section 38 of the Specific Relief Act for permanent prohibitory and perpetual injunction to restrain the defendants from causing any interference, damage, cutting and changing the nature of the suit land etc. The case as set up in the plaint was that the plaintiff, defendants and others are co-owners in possession of the suit land comprised in Khata/Khatauni Nos.16/32, 33, 34, 35, 36, 37, 38, 39 and 40, bearing Khasra Nos.213/202/5 Min, 212/202/5 Min, Kitas 16 measuring 176-09 bighas, situated at Village Shadyal, Tehsil Kandaghat, District Solan. In support of the averments, Jamabandi for the year 2009-10 was appended. The projected grievance of the plaintiff was that the defendants were raising construction over the suit land with an intention to grab its best portion adjoining to village Shadyal-Basha road. It was further averred that by raising the construction, the defendants were trying to possess more land on the spot than their share. Alongwith the civil suit, an application under Order 39 Rule 1 and 2 read with Section 151 CPC for grant of temporary injunction was also moved. 2(ii). In the written statement, stand of the defendants was that:- 2(ii)(a). Partition/Family arrangement had taken place amongst the ancestors of the shareholders of the suit land. Subsequent thereto, all the shareholders are in separate possession of different khataunis. Their such separate possession has been recorded in the jamabandi. 2(ii)(b). Area comprised in Khatauni Nos.37, 38 and 39 is in possession of the defendants and others, whereas area comprised in Khatauni No.40 is in possession of the plaintiff and others. The revenue record evidences this fact. Defendants intended to raise construction only over 6 biswas of land falling under Khatauni Nos.37, 38 and 39, out of suit land total measuring 176-09 Bighas. 2(ii)(c). The possession of co-sharers over separate parcel of lands under different khataunis has remained un-objected and uninterrupted. The revenue record evidences this fact. Defendants intended to raise construction only over 6 biswas of land falling under Khatauni Nos.37, 38 and 39, out of suit land total measuring 176-09 Bighas. 2(ii)(c). The possession of co-sharers over separate parcel of lands under different khataunis has remained un-objected and uninterrupted. The land entered in different khataunis in possession of different co-owners to the exclusion of others has been accepted by all the joint owners. Therefore, the plaintiff is estopped from filing the suit to restrain the defendants from raising construction over the land in their possession. 2(ii)(d). It is not only the defendants, who were raising construction over the land comprised in Khatauni Nos.37-39, i.e. parts of suit land, but various other co-owners, viz. daughters of Smt. Kalavati and Smt. Taravati, were also constructing houses over the suit land at a distance of around 30 feet from the land where the defendants were digging the pits. The plaintiff had not objected to raising of construction over the suit land by these two co-owners. But by means of instant suit, he was opposing the construction over the suit land by the defendants. Raising of construction over the suit land by other co-owners was concealed in the plaint. 2(ii)(e). The plaintiff had himself raised construction over best portion of the suit land adjacent to National Highway No.22, i.e. Shimla-Parwanoo road. He had raised a three storied structure, out of which one floor was commercial and was fetching him monthly rent of Rs.40,000/-. 2(iii). In replication, the plaintiff did not dispute the fact that he had constructed a three storied house over parts of suit land (Khatauni No.40) adjoining to the national highway. The plaintiff did not deny that other co-owners named in the written statement had also been raising construction over parts of suit land. The plaintiff did not even dispute that the defendants were attempting to raise construction only over 6 biswas of land comprised in Khatauni Nos.37-39 out of the total suit land measuring 176-09 bighas and that land under these three khataunis was in possession of defendants alongwith others. 3. After considering the entire material available on record, learned Trial Court held that the defendants had not placed on record any document to show that family settlement regarding the suit land was carried out. 3. After considering the entire material available on record, learned Trial Court held that the defendants had not placed on record any document to show that family settlement regarding the suit land was carried out. And that such family arrangement was with corresponding intent of severance of joint status of the co-sharers over the suit land. So long the property is joint amongst the parties, no co-owner can exercise his right upon the land in a manner, which would adversely or prejudicially affect the rights and interests of other co-owners. It is only after getting the suit land partitioned by metes and bounds or with the consent of all the co-owners that construction can be raised by a co-owner over the land. Consequently, the application under Order 39 Rule 1 and 2 CPC, moved by the plaintiff, was allowed. Parties were directed to maintain status-quo qua the nature, possession and construction over the entire suit land measuring 176-09 bighas. The order was affirmed in appeal by the learned Additional District Judge-II, Solan, District Solan. It is in this background that the instant petition has been filed by the defendants. 4. I have heard learned counsel for the parties and gone through the record. Sh. G.D. Verma, learned Senior Counsel appearing for the defendants/petitioners contended that present was a case where all the co-sharers had been raising construction over the suit land as per their choice over the years on the areas in their respective possession. A family arrangement had taken place inter-se the ancestors of the joint owners, pursuant to which the co-sharers were in separate possession of the khataunis. Their separate possession of the areas in different khataunis was recorded in the Jamabandi for the year 2014-15 and in the revenue record even prior thereto. Area measuring 20-10 bighas comprised in Khatauni Nos.37, 38 and 39 has been reflected in separate possession of the defendants alongwith others to the exclusion of plaintiff, whereas area measuring 30 bighas comprised in Khatauni No.40 has been reflected in the revenue record in possession of the plaintiff and others to the exclusion of the defendants. All the co-owners have accepted and recognized separate possession of co-owners over distinct areas under different khataunis of the suit land. All the co-owners have accepted and recognized separate possession of co-owners over distinct areas under different khataunis of the suit land. It is in this manner that the plaintiff had raised construction of a three storied house over the best portion of the suit land falling under Khatauni No.40 on National Highway No.22 (Shimla to Parwanoo). Some portion of this construction, being used by him for commercial purposes is fetching him Rs.40,000/- per month as rent. In similar manner, some other co-sharers, i.e. daughters of Smt. Kalavati and Smt. Taravati, are also raising construction over the parts of the suit land in their possession. This construction is being raised at a distance of around 30 feet from the place where the defendants wanted to raise the construction. The plaintiff had not objected to the construction being raised by the daughters of above two named co-sharers. Under such circumstances, plaintiff has no right to restrain the defendants from raising construction over parts of suit land, which is in their possession. In the facts and circumstances of the case, the remedy, if any, available to the plaintiff, was to initiate partition proceedings and not to file the civil suit seeking injunction. Per contra, Sh. Balwant Singh Thakur, learned counsel for the plaintiff (respondent herein) argued that the suit land is joint. It has not been partitioned by metes and bounds. The defendants do not have any right to raise construction over the suit land in excess of their share. They can raise construction only over their share, which can be determined in the partition proceedings. The area comprised in Khatauni Nos.37-39 is not in exclusive possession of the defendants, rather, the defendants are in possession of the area under these three Khataunis alongwith others. Learned counsel for the plaintiff also stated that defendant No.1, Sh. Ajay Kumar, has already raised a shop over 2 biswas of land falling under Khatauni Nos.37-39, which he has rented out. Learned counsel, therefore, argued that the orders under challenge do not suffer from any infirmity. 5. Observations:- 5(i). Persons in settled joint possession of immovable property are supposed to respect the right to joint possession of each other in the same fashion and manner as the owners in joint possession. Learned counsel, therefore, argued that the orders under challenge do not suffer from any infirmity. 5. Observations:- 5(i). Persons in settled joint possession of immovable property are supposed to respect the right to joint possession of each other in the same fashion and manner as the owners in joint possession. A person in joint possession of immovable property cannot change the nature of suit property unless the property is partitioned or the other persons in joint possession consent to such change in the nature of the property (Re: 2007 (1) Latest HLJ (H.P.) 413, titled Shiv Chand v. Manghru and others). (2010) 3 Shim. LC 205, titled Payar Singh v. Narayan Dass and others, was a case where stand of the respondents was that they were in separate possession of land in family partition over which they were raising construction. They also stated that petitioner had also constructed his house over the land in his possession. Finding force in contentions of the respondents, following was observed in paragraph 12 of the judgment:- “12. The respondents in the written statement have specifically pleaded that parties are in separate possession under family arrangement. The petitioner has also constructed his house on the joint land. It is not the stand of the petitioner that respondents are raising construction on an area which is more than their share. The case of the respondents is that petitioner has constructed his house on a better portion of the land. The under construction house of the respondents is away from the National Highway 21 whereas the house of the petitioner abuts N.H. 21. The respondents have placed on record on the file of revision photographs of under construction house of the respondents. The photographs indicate sufficient gap between the already constructed house of petitioner and under construction house of the respondents over which even slab has been placed. It is the case of the respondents in written statement that they are in separate possession of the land in family arragment. This fact has not been denied by filing replication. The respondents are claiming possession over the suit land under family arrangement i.e. with the consent of the petitioner over which they are raising construction. The respondents have thus established prima facie case, balance of convenience, irreparable loss in their favour. In these circumstances, no fault can be found with the impugned judgment. The respondents are claiming possession over the suit land under family arrangement i.e. with the consent of the petitioner over which they are raising construction. The respondents have thus established prima facie case, balance of convenience, irreparable loss in their favour. In these circumstances, no fault can be found with the impugned judgment. In revision the scope is limited as held in The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (Purchase ad Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, AIR 1973 SC 76 . The suit is for permanent prohibitory and mandatory injunction. The rights of the parties will be decided in the suit. It has not been established that the view taken by the learned District Judge does not emerge from the material on record.” Various judgments on the inter se rights and liabilities of co-sharers were considered by a Co-ordinate Bench of this Court in 2016 (1) Shim. LC 207, titled Ashok Kapoor Versus Murtu Devi, wherein following principles were culled out:- “41. The exposition of law as enunciated in the various judgments referred above including those of this High Court, insofar as the rights and liabilities of the co-owners is concerned, gives rise to the following propositions:- 1. A co-owner has an interest in the whole property and also in every parcel of it. 2. Possession of 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 either as, when a co-owner openly asserts his own title and denies that of the other. 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. 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 by the other coowners, it is not open to any body to dispute the arrangement without the consent of others except by filing a suit for partition. 8. The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. 9. Where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner, if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered.” 5(ii). Against the backdrop of above legal position, facts of instant case may be considered. The suit land measures 176-09 bighas. The entire suit land falls in two khasra numbers and in different khataunis. As per the Jamabandi for the year 2014-15, the area under these khataunis has been reflected in possession of different co-sharers. 20-10 bighas of land under Khatauni Nos.37-39 has been reflected in possession of the defendants alongwith some others. Plaintiff’s possession is not recorded in these khataunis. The revenue record shows construction of a shop over 2 biswas of land under these three khataunis. Similarly, land measuring 30 bighas under Khatauni No.40 has been shown in possession of the plaintiff alongwith some others. Possession of defendants is not reflected in this khatauni. The plaintiff is also shown to have constructed a house over an area of 4 biswas falling in Khatauni No.40. 5(iii). The plaintiff has not disputed his raising a three storied house over the area falling in Khatauni No.40 on National Highway No.22. Possession of defendants is not reflected in this khatauni. The plaintiff is also shown to have constructed a house over an area of 4 biswas falling in Khatauni No.40. 5(iii). The plaintiff has not disputed his raising a three storied house over the area falling in Khatauni No.40 on National Highway No.22. He has not disputed that a part of this house has been rented out by him and is fetching him Rs.40,000/- per month as rent. 5(iv). The plaintiff has also not denied that other co-owners, i.e. daughters of Smt. Kalavati and Smt. Taravati, are raising construction over portions of suit land in their possession, which is at a distance of about 30 feet from the place where the defendants intended to raise construction. It is not the case of the plaintiff that he has filed any suit for restraining these two co-owners from raising construction over the suit land on the ground that the suit land is joint and co-owner cannot be permitted to raise construction till the time the entire suit land is partitioned by metes and bounds. 5(v). When a co-sharer himself raises a construction over the joint land, when a co-sharer does not object to raising of construction over the joint land by some other co-owners, then, he cannot seek to restrain one specific co-owner from raising construction over part of suit land, more so, when the construction being raised by that particular co-owner is over a portion, which, as per the revenue record, is in his possession alongwith others and when the plaintiff has not been shown in possession of this specific portion of land. Law relating to grant or refusal of injunction is well settled. Hon’ble Apex Court in AIR 2008 SC 2291 , titled Mandali Ranganna & Ors. etc. v. T. Ramachandra & Ors., held that while considering an application for grant of injunction, the Court will not only take into consideration the basic elements in relation thereto, viz. existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The Court will not interfere only because the property is a very valuable one. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The Court will not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequence depending upon the nature thereof. The Courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the Courts is imperative. Contentions raised by the parties must be determined objectively. For considering satisfaction of parameters laid down for grant of temporary injunction, following observations of Ashok Kapoor’s case, supra, are also material to the facts of instant case:- “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. (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. (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 plaintiff’s conduct is free from blame and he approaches the Court with clean hands.” Plaintiff has not even shown as to how in the facts of the case, raising of construction by the defendants over 6 biswas of land falling under Khatauni Nos.37-39 which are in their possession, will cause prejudice to him or would be detrimental to his interest. The conduct of the plaintiff also assumes significance while considering his prayer for grant of equitable relief of injunction. He has himself raised construction over the joint land. He has not raised any objection to other co-sharer’s raising construction over the suit land. He is earning handsomely by putting to use the construction raised by him over the joint land. He does not object to the construction raised over the parts of suit land by the other co-sharers, but for the reasons best known to him, has objected to raising of construction over the suit land by the defendants. One who seeks equity must do equity. He does not object to the construction raised over the parts of suit land by the other co-sharers, but for the reasons best known to him, has objected to raising of construction over the suit land by the defendants. One who seeks equity must do equity. Out of total suit land measuring 176-09 Bighas, the defendants alongwith others have been recorded to be in specific possession of Khatauni Nos.37-39 measuring 20-10 Bighas. The parameters of order 39 Rule 1 and 2 are not satisfied in the instant case for granting temporary injunction in favour of plaintiff. It is the pleaded case of the defendants that they intend to raise construction only over 6 biswas of land falling under Khatauni Nos.37-39 out of total suit land measuring 176-09 Bighas. This position has been reiterated during hearing of the case by learned Senior Counsel for the defendants on instructions that the defendants shall not raise any construction exceeding 6 biswas of land falling under Khatauni Nos.37-39. For the foregoing reasons, the instant petition is allowed. The impugned order dated 19.05.2018, passed by the learned Civil Judge, Kandaghat, District Solan in the application under Order 39 Rule 1 and 2 read with Section 151 CPC and the order dated 07.09.2018 passed by the learned Additional District Judge-II, Solan, District Solan in Civil Misc. Appeal No.8ADJ-II/14 of 2018, are set aside. The defendants are permitted to raise construction over 6 biswas of land comprised in Khatauni Nos.37-39, out of total suit land measuring 176-09 Bighas. It is made clear that observations made above are confined only to the adjudication of the instant petition and shall have no effect on the merits of the matter. Learned trial Court shall decide the civil suit without being influenced by above observations. The construction raised by the defendants in terms of this order shall abide by the final decision of the suit. The parties, through their learned counsel, are directed to remain present before the learned Trial Court on 16.09.2021. With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any. Records be returned forthwith.