JUDGMENT : By way of instant Regular Second Appeal filed under S.100 CPC, challenge has been laid to judgment and decree dated 30.7.2019 passed by learned Additional District Judge-1, Mandi, District Mandi, Himachal Pradesh in Civil Appeal No. 61/2018, reversing the judgment and decree dated 28.9.2018 passed by learned Civil Judge, Court No.2, Sundernagar, District Mandi, Himachal Pradesh in Civil Suit No. 49/2012, whereby, learned trial Court, while decreeing the suit of the appellant/plaintiff (hereinafter, ‘plaintiff’) with respect to land comprised in Khewat No. 99, Khatauni No. 107, Khasra Mitas 19, total land measuring 18-10-11 Bigha, situate in Mohal Dharanda/1, Tehsil Sundernagar, District Mandi, Himachal Pradesh (hereinafter, ‘suit land’), restrained the respondent/defendant (hereinafter, ‘defendant’) from raising construction over the suit land, in any manner, till the same is partitioned in metes and bounds. 2. Precisely, the facts of the case, as emerge from the record, are that plaintiff filed a suit for permanent prohibitory and mandatory injunctions, restraining defendant from raising any construction on suit land as described above, till its partition by meats and bounds. Plaintiff claimed before learned court below that the suit land is joint inter se them and till date, same has not been partitioned. It is averred in the plaint that Khasra No. 1398 was best portion by the side of Gharanda-Mera-Masit road and best for commercial purposes, but defendant has started raising construction on the same despite the fact that entire land including Khasra No.1398 is still joint inter se parties. Plaintiff averred in the plaint that since he requested defendant not to raise construction, but yet he continued with the construction work and refused to accede to his request, as such, defendant is liable to be restrained by way of decree of permanent prohibitory and mandatory injunctions. 3. Claim set up in plaint came to be resisted on the grounds of maintainability, locus standi, estoppel and mis-joinder and non-joinder of parties. Besides above, defendant in his written statement though admitted that the plaintiff and defendant are co-sharers in suit land and it stands recorded jointly in revenue record, but specifically stated /claimed that parties are in separate possession on the spot as per their shares. It is pleaded that the house was constructed on the spot, which is 60 feet from the road. It is pleaded that the house was constructed on the spot, which is 60 feet from the road. Apart from above, defendant also pleaded that when work was started, plaintiff not only cooperated with him but encouraged him for construction and now when defendant has already spent huge amount, construction is being opposed on the ground that the land is joint inter se parties. He further submitted that one of fields is still lying vacant on road side and in possession of plaintiff. Plaintiff filed replication to written statement, wherein he claimed that the defendant has already built three houses near road and this is fourth one, which is being constructed without any need. 4. On the basis of pleadings of the parties and evidence led on record by respective parties, learned trial Court framed following issues. 1) Whether the defendant is raising construction on the entire front portion of the suit land and thereby occupying valuable portion of it, as alleged? OPP 2) Whether the plaintiff is entitled for relief of permanent prohibitory injunction? OPP 3) Whether suit of the plaintiff is not maintainable? OPD 4) Whether the plaintiff is not maintainable? OPD 5) Whether the plaintiff estopped from filing the present suit by his acts and conducts? OPD 5. Subsequently, vide judgment and decree dated 28.9.2018, learned trial Court decreed the suit and restrained the defendant from raising construction over suit land in any manner till partition of suit land. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court, defendant filed an appeal in the court of learned Additional District Judge-I, Mandi, Himachal Pradesh, which was allowed vide impugned judgment and decree dated 30.7.2019. In the aforesaid background, plaintiff has approached this court by way of present appeal, praying therein to restore judgment and decree dated 28.9.2018 passed by learned trial Court, after setting aside judgment and decree dated 30.7.2019 passed by learned Additional District Judge-I, Mandi, Himachal Pradesh. Since dispute is/was inter se two brothers,, on the consent of the parties, this court referred the matter to mediation to explore possibility of amicable settlement inter se them but unfortunately, they have failed to resolve the matter inter se them amicably and as such, case has come up for decision on the merit. 6. Mr. Since dispute is/was inter se two brothers,, on the consent of the parties, this court referred the matter to mediation to explore possibility of amicable settlement inter se them but unfortunately, they have failed to resolve the matter inter se them amicably and as such, case has come up for decision on the merit. 6. Mr. Mohan Singh, learned counsel for the appellant, vehemently argued that the judgment and decree passed by learned first appellate court is not based upon proper appreciation of facts and law as such, same is not sustainable in the eye of law. While making his court peruse evidence, be it ocular or documentary, learned counsel for the appellant argued that there is no illegality or infirmity in the judgment and decree passed by learned trial Court, as such, learned first appellate court ought not have interfered with the same. He submitted that since it stood duly proved on record that the suit land is still joint inter se parties and apart from the construction, which is subject matter of present case, defendant has already constructed 2-3 houses on suit land and as such, learned trial Court rightly restrained him from raising construction on suit land till its partition by metes and bounds. He further submitted that no doubt, plaintiff has also raised construction on suit land as is evident from record, but Khasra No. 1398, where new construction is being raised is still un-partitioned inter se parties and none of parties has raised construction over the same, as such, first appellate court had no occasion to set aside the judgment and decree passed by learned trial Court, which is based upon proper appreciation of law, evidence and pleadings of the parties. He further submitted that since appellate court failed to appreciate the pleadings and evidence in its right perspective, substantial questions of law arise for determination by this Court. 7. Mr. B.M. Chauhan, learned Senior Advocate duly assisted by Mr. He further submitted that since appellate court failed to appreciate the pleadings and evidence in its right perspective, substantial questions of law arise for determination by this Court. 7. Mr. B.M. Chauhan, learned Senior Advocate duly assisted by Mr. Manmohan Singh Katoch, Advocate, while supporting the impugned judgment and decree passed by learned first appellate court, vehemently argued that though the suit land in total is measuring more than 18 Bigha, but interestingly, plaintiff with a view to gain sympathy of the court, only filed suit qua one of the portions of suit land i.e. Khasra No. 1398, which though is joint inter se parties but since plaintiff has already raised construction on some portion of land, in other Khasra numbers, he has no right to object to construction being raised by defendant, who otherwise is in possession of Khasra No. 1398. While referring to judgment passed by this court in Smt. Besru Devi v. Sh. Bhoop Ram and others, Latest HLJ 2021 (HP) (1) 357, learned counsel for the defendant argued 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. He submitted that once it is not in dispute that on the portion of land measuring more than 18 Bigha, plaintiff has already raised construction and defendant never objected to the same, no illegality can be said to been committed by learned first appellate court, while reversing the judgment and decree of learned trial Court, which is not based on proper appreciation of evidence led on record by parties. 8. 8. Having heard learned counsel for the parties and perused material available on record vis-à-vis the reasoning assigned in the judgment and decree passed by learned first appellate court, this court finds it difficult to agree with learned counsel for the appellant that the first appellate court has failed to appreciate the evidence in its in right perspective rather, this court finds that the learned trial Court, while passing decree of injunction in favour of plaintiff, totally ignored the fact that land claimed to be joint inter se parties is/was more than 18 Bigha whereas, plaintiff only filed suit qua one portion of suit land i.e. Khasra No. 1398. It is not in dispute that entire land in Khata No. 99, Khatauni No. 107 is joint inter se parties and parties though are joint owners, but in possession of their specific shares. 9. Interestingly, plaint, if any filed by plaintiff if read in entirety, shows that plaintiff, while filing suit, stated in the plaint that Khata 99, Khatauni 107, Khasra Kita 19, total land measuring 18-10-11 Bigha situate on Mohal Dharanda is jointly owned and possessed by plaintiff, defendant and other co-owners as per Jamabandi for the years 2009-10, but interestingly, he raised issue with regard to construction being raised by defendant on Khasra No. 1398. Most importantly, in paragraph-6 of the plaint, plaintiff, while stating that he had requested defendant not to dig land/ raise construction, specifically gave drawing of Khasra No. 1398 only, perusal whereof though reveals that same is abutting to Dharanda Mera Masit road but construction is being raised sixty metres away from the road. In the plaint, plaintiff nowhere mentioned/furnished details with regard to possession/construction of houses if any by plaintiff, defendant and other co-owners, whereas, if the statement made by the plaintiff before learned trial Court is perused in its entirety, he clearly admitted the factum with regard to his having raised construction on the other portion of land. Besides this, plaintiff admitted that he has only filed suit qua Khasra No. 1398. Besides this, plaintiff admitted that he has only filed suit qua Khasra No. 1398. If it is so, plaintiff is estopped from claiming that the entire suit land is joint inter se parties, because, land measuring more than 18 Bigha comprised in Khewat No. 99, Khatauni No. 107, Khasra Kita 19, situate in Mohal Dharanda is joint inter se parties and Khasra No. 1398 is one of land out of total joint land, as described above. If it is so, plaintiff ought to have given complete details with regard to specific portion of the plaintiff, defendant and other co-owners on the other portions of suit land. 10. No doubt, if evidence led on record by the parties, is read juxtaposing each other, it stands established on record that the suit land is joint inter se parties but that may not be sufficient to restrain defendant from raising construction on portion of land, especially when same is in his possession and plaintiff and other co owners have already raised construction over other portion of land in their possession, which is also yet to be partitioned. Though the plaintiff has claimed that the construction is being raised by defendant on valuable portion of land, but evidence available on record reveals that construction is being raised at 60 feet away from the road, which fact has been otherwise admitted by plaintiff. Most importantly plaintiff admitted that approximately 200 feet land is still lying vacant adjacent to spot of construction being raised by the defendant. He further admitted that the construction is being raised by defendant only on 4 Biswa of land and he had started construction work prior to filing of the suit. Most importantly, this witness further admitted that land, on which construction is being raised by defendant, was being occupied and cultivated by the defendant, meaning thereby defendant was in specific possession of suit land. Similarly, this witness has categorically admitted that he has constructed two houses, one in 1976 and another in 1999. If it is so, there is/was no occasion for the plaintiff to obstruct defendant, who is his brother, from raising construction over the land, which is in his exclusive possession. 11. Similarly, this witness has categorically admitted that he has constructed two houses, one in 1976 and another in 1999. If it is so, there is/was no occasion for the plaintiff to obstruct defendant, who is his brother, from raising construction over the land, which is in his exclusive possession. 11. Since construction is being raised on 4 Biswa of land and still in Khasra No. 1398, more than 200 feet land is lying vacant, no prejudice, if any, can be said to be caused by the defendant to the plaintiff by raising construction on four Biswa of land, which was otherwise in his possession as has been admitted by the plaintiff. Apart from above, revenue official DW-4, Patwari of area concerned, conducted demarcation on the spot and while admitting factum with regard to inspection of spot, he admitted that construction is being raised on 4 Biswa of land, which was in possession of defendants and the same is 60 feet away from the road in question. 12. Needles to say before grant of injunction, court is required to satisfy itself that the party praying for the relief has a prima facie case and balance of convenience is also in its favour. While granting injunction, court is also required to consider whether refusal or grant of injunction would cause irreparable loss and injury to such party and irreparable loss/injury, if any, can be compensated in terms of money or not? Similarly, court while deciding balance of convenience, is also required to weigh protection of the plaintiff’s right against need for protection of defendant’s right or infringement of right. Apart from above, conduct of the party seeking injunction is also of utmost importance, as has been held by Hon'ble Apex Court in M/s Gujarat Bottling Co. Ltd. & Ors. v. The Coca Cola Co. & Ors., AIR 1995 2372. If a party seeking injunction fails to make out any of the three ingredients, court should be reluctant to grant injunction. 13. In the instant case, plaintiff, while seeking injunction neither has been able to establish prima facie case in his favour nor balance of convenience. Admittedly, the suit land though was joint inter se parties, but all the co-owners including the defendant are/were in specific possession of their shares. Apart from above, plaintiff before filing suit for injunction had already raised construction of two houses on the suit land measuring 18 Bigha. Admittedly, the suit land though was joint inter se parties, but all the co-owners including the defendant are/were in specific possession of their shares. Apart from above, plaintiff before filing suit for injunction had already raised construction of two houses on the suit land measuring 18 Bigha. Since the plaintiff had already raised construction on some portion of suit land and still good amount of land is lying vacant in Khasra No. 1398, coupled with the fact that construction was being raised by defendant on land in his possession, there is a reason to presume and believe that the suit for injunction was filed by the plaintiff with a view to harass the defendant. Though plaintiff attempted to carve out a case that construction is being raised on valuable portion of suit land, but since he filed suit qua one Khasra of the entire Khata, wherein defendant is already in possession, as has been admitted by plaintiff himself and he was unable to prove that the construction is being made on valuable portion of land, no illegality can be said to have been committed by learned first appellate court, while reversing the judgment and decree passed by learned trial Court, which is definitely not based on proper appreciation of facts as well as evidence led on record by respective parties. 14. Leaving everything aside, this court having taken of the fact that the plaintiff, while filing the suit, failed to array other co-owners as party coupled with the fact that he raised dispute qua Khasra No. 1398 only, he otherwise is estopped from claiming discretionary relief/ equitable relief, especially on account of his conduct. Plaintiff after having raised construction of two houses on the joint land, filed suit against his own brother, restraining him from raising construction. 15. Repeatedly Hon'ble Apex Court and this Court have held that a party, who has already raised construction on one portion of land, is estopped from filing suit for injunction on the ground that the co-owner cannot be permitted to raise construction till partition by meats and bounds. 16. 15. Repeatedly Hon'ble Apex Court and this Court have held that a party, who has already raised construction on one portion of land, is estopped from filing suit for injunction on the ground that the co-owner cannot be permitted to raise construction till partition by meats and bounds. 16. At this stage, learned counsel for the appellant while placing reliance upon the judgment rendered by Hon’ble Apex Court in Skyline Education Institute (India) Private Limited v. S.L. Vaswani and another (2010) 2 Supreme Court Cases 142, contended that once the Court of first instance refuses to grant relief of temporary injunction , appellate Court should be loath to interfere. Learned Counsel appearing for the appellant, further contended that since order granting injunction passed by trial Court was based upon objective consideration of the material placed before it and supported by cogent reasons, learned first appellate Court ought not have interfered with the same. Though, having read /perused the aforesaid judgment in its entirety, this Court sees no quarrel with the aforesaid proposition of law laid down by Hon’ble Apex Court, but as per aforesaid judgment passed by the court, appellate court should be loath to interfere in order granting injunction passed by trial Court in case same is based upon the objective consideration of the material placed before the Court and same is supported by cogent reasons. 17. However, in the case at hand, careful perusal of order granting injunction passed by trial Court by no stretch of imagination can be said to be based upon objective consideration of the material placed before the Court. Had trial Court made objective consideration of the material made available to it, it would have not placed much reliance upon Jamabandi for the year 2009-2010, wherein though land was shown to be measuring more than 18 Bigha, in joint ownership of plaintiff, defendant and others, but yet the plaintiff raised issue with regard to one number i.e. Khasra No. 1398, that too without impleading other co-owners, who like plaintiff have similar interest in the suit land. 18. This Court in Ashok Kapoor v. Murtu Devi, 2016(1) Shim.L.C.207, has dealt with the rights and liabilities of the co-owners. 18. This Court in Ashok Kapoor v. Murtu Devi, 2016(1) Shim.L.C.207, has dealt with the rights and liabilities of the co-owners. As per aforesaid judgments, 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. Most importantly, in the aforesaid judgment, it has been held that mere making construction or improvement of in, the common property does not amount to ouster, rather 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 has right to claim injunction to prevent the diminution of the value and utility of the property. Before injunction is issued, plaintiff is required to establish that he/she 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. 19. In view of above, there is no question of law, much less substantial question of law in the present appeal. 20. In view of above, this court finds no illegality or infirmity in the judgment passed by learned first appellate Court and same is upheld, as a result thereof, the appeal is dismissed. All pending applications also stand disposed of. Interim direction, if any, stands vacated.