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2023 DIGILAW 95 (HP)

Rattan Singh v. Som Dutt

2023-02-28

SANDEEP SHARMA

body2023
JUDGMENT : SANDEEP SHARMA, J. 1. Instant petition filed under Article 227 of the Constitution of India lays challenge to judgment dated 30.11.2022 passed by learned Additional District Judge-I, Kangra at Dharamshala, District Kangra, Himachal Pradesh in Civil Misc. Appeal No. 03-N/XIV/2021, setting aside the order dated 13.7.2021 passed by learned Civil Judge, Nurpur in CMA No. 373/2019 in Civil Suit No. 200/2019 titled Rattan Singh vs. Balwant Singh, whereby learned trial Court, while allowing an application filed under Order XXXIX, rule 1 and 2 CPC by appellant/plaintiff (hereinafter ‘plaintiff’) restrained the respondents/defendants (hereinafter ‘defendants’) from raising any kind of construction and changing the nature of the suit land, as described in the plaint. 2. Precisely, the facts of the case, as emerge from the record, are that the plaintiff filed a civil suit against the defendants (hereinafter, ‘defendant’) (Annexure P-1), for permanent injunction restraining the defendants, their family members, relatives, agents, servants, attorneys, assignees, masons, labourers etc. permanently from raising any kind of construction, changing the nature of the land or doing any act, which is detrimental to the plaintiff in the land comprised in Khata No. 14, Khatauni No. 19, Khasra Nos. 2319/1601, 1602, 1888, 1889, 2006, 2009, 2013, 2014, 2033, 2084, 2206, 2209 plots 12 measuring 01-56-75 HM situate in Mohal Rehan Khas and Mouza Rehan, Tehsil Fatehpur, District Kangra, Himachal Pradesh (hereinafter ‘suit land’). It is averred in the plaint that the suit land is in joint ownership and possession of plaintiff and defendants and the same has not been partitioned as yet. The partition proceedings are stated to be pending before Sub Divisional Magistrate, Fatehpur in appeal and next date was 22.11.2019. It is averred in the plaint that the defendants threatened to raise forcible construction over the suit land and did not desist from raising forcible construction on suit land. Alongwith plaint, an application under Order XXXIX, rules 1 and 2 CPC was filed by the plaintiff for restraining the defendants from raising construction, changing nature of suit land or doing any act, detrimental to the plaintiff. 3. The suit was contested by the defendants Nos. 3 and 4 by filing written statement to the plaint and reply to the application. It is averred in the written statement that suit land was not joint as on 20.11.2019, as the suit land stood partitioned by Assistant Collector First Grade, Nurpur. 3. The suit was contested by the defendants Nos. 3 and 4 by filing written statement to the plaint and reply to the application. It is averred in the written statement that suit land was not joint as on 20.11.2019, as the suit land stood partitioned by Assistant Collector First Grade, Nurpur. On establishment of the office of Sub Divisional Magistrate Fatehpur, the plaintiff filed an appeal, which was decided on 5.5.2017 and on the basis of instrument of partition, possession was delivered to the parties. It is further averred that the mutation No. 1394 dated 20.6.2019 was entered in the revenue record. It is averred that the defendants were allotted Khasra Nos. 2319/1601/5 and 1602/3. It is averred that application for demarcation was filed by one Rashpal and plaintiff was duly informed about the demarcation report, but he refused to sign the same. In nutshell, as per defendants, the suit land was duly partitioned. 4. Plaintiff filed replication to the written statement thereby stating that the plaintiff filed an appeal against order dated 22.10.2019 passed by Assistant Collector First Grade Fatehpur and appeal was accepted by the Collector Fatehpur and matter was remanded back to the Assistant Collector First Grade for decision afresh. It is averred that the partition was not done in accordance with Rules. 5. Learned trial Court vide order dated 13.7.2021, allowed the application filed by the plaintiff and restrained the defendants from raising any construction, changing nature of suit land or doing any acts detrimental to the rights of the plaintiff. Defendants Nos. 2 to 4 filed an appeal under Order XLIII, rule 1(r) CPC against the order dated 13.7.2021 before learned Additional District Judge-I, Kangra at Dharamshala, who vide judgment dated 30.11.2022, allowed the appeal and set aside the order passed by learned trial Court on 13.7.2021, dismissing the application filed by the plaintiff. 6. Now, the plaintiff has approached this Court, by way of extant petition, laying therein challenge to the judgment passed by learned Additional District Judge-I, Kangra at Dharamshala. 7. Learned counsel for the plaintiff argued that the learned Additional District Judge failed to appreciate that the partition proceedings are not complete as Sub Divisional Collector, Fatehpur, vide order dated 22.7.2022 has directed the authority below to conduct fresh partition. 7. Learned counsel for the plaintiff argued that the learned Additional District Judge failed to appreciate that the partition proceedings are not complete as Sub Divisional Collector, Fatehpur, vide order dated 22.7.2022 has directed the authority below to conduct fresh partition. It is argued by learned counsel for the plaintiff that the defendants continued the construction on suit land despite stay orders just to oust the plaintiff from valuable portion of the suit land thus the plaintiff has proved all the three ingredients for grant of interim injunction viz. prima facie case, irreparable loss and balance of convenience. It is argued by learned counsel for the plaintiff that permitting the defendants to raise construction on best and valuable portion of suit land would amount to ouster of the plaintiff therefrom, especially when the partition proceedings have not finalized. 8. On the other hand, learned counsel for contesting defendants, argued that the defendants purchased the land from the plaintiff and plaintiff has been dragging the defendants into litigation unnecessarily. It is averred by Mr. Ajay Sharma, learned senior counsel that the revenue authorities put the parties in possession of their respective shares as per order dated 27.5.2019 and mutation in this regard stands attested in revenue record. It is averred by Mr. Sharma that the defendants cannot be restrained from exercising their right on the joint property, unless the act of the defendants amounts to ouster of the plaintiff, prejudicial to his rights. It is further averred that a co-sharer cannot restrain another co-sharer from raising construction, more specifically when he has already raised construction over the suit land. 9. I have heard learned counsel for the parties and gone through the pleadings of the parties. 10. Careful perusal of material available on record, reveals that suit land is joint inter se parties. Though the suit land was partitioned initially vide order dated 21.1.2014 by the order of Assistant Collector First Grade Nurpur, which was assailed by the plaintiff before Sub Divisional Collector Fatehpur, who set aside the order dated 21.1.2014 and remanded the case back to the Assistant Collector First Grade Nurpur, with a direction to prepare the partition papers afresh after hearing parties in accordance with mode of partition prepared on 21.12.2001. Record reveals that Assistant Collector First Grade ordered partition on 27.5.2019 again, against which appeal was instituted by the plaintiff on 22.10.2019 and Sub Divisional Officer (Civil) Fatehpur vide order dated 31.12.2019, accepted the appeal and remanded the case back to Assistant Collector First Grade to decide the same afresh. It is thus clear that on 20.11.2019, when suit was filed by the plaintiff the appeal before Sub Divisional Officer (Civil) was still pending. Though no stay of order of partition was passed by Sub Divisional Officer (Civil) but order dated 27.5.2019 itself was set aside. Defendants have produced before learned Courts below order dated 9.12.2020 passed by Assistant Collector Second Grade Fatehpur, whereby suit land stands partitioned as per order dated 27.5.2019. Order dated 9.12.2020 has again been challenged by the plaintiff before Sub Divisional Officer (Civil) Fatehpur, which is stated to have been allowed by Sub Divisional Officer (Civil) on 22.7.2022 and case stands remanded back yet again to Assistant Collector Second Grade. As per defendants Nos. 3 and 4, they admit factum of raising construction over Khasra Nos. 2319/1601/5 and 1602/3 allotted to them in the partition proceedings. 11. From the pleadings and record, two facts become clear, one is that the suit land is technically joint inter se parties and second, defendants are co-owners in the suit land. It is settled law that a co-sharer cannot seek 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 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. 12. In the case at hand, interestingly, plaintiff himself has raised construction on one portion of land and as such, his action of stopping other co-owner from raising construction over specific portion of suit land adversely reflects upon his conduct as such, is not entitled to discretionary relief of injunction. 13. It would be apt to take note of following paras of judgment rendered by this Court in Bhajna Nand vs. Bharat Ram, CMPMO No. 211 of 2022, decided on 31.8.2022, relevant Paras of which read as under: “7. 13. It would be apt to take note of following paras of judgment rendered by this Court in Bhajna Nand vs. Bharat Ram, CMPMO No. 211 of 2022, decided on 31.8.2022, relevant Paras of which read as under: “7. Before ascertaining the correctness and genuineness of the aforesaid submissions made by the learned counsel for the parties, this Court, at the first instance deems, it fit to deal with specific question raised with regard to maintainability of the petition filed under Article 227 of the Constitution of India, laying therein challenge to the finding rendered by the learned District Judge in an appeal filed against the order passed by the learned trial court in application filed under Order 39 Rules 1 and 2 CPC. At this juncture, it would be apt to take note of the judgment passed by the Hon’ble Apex Court in case titled Garmet Craft vs. Prakash Chand Goel, 2022 (4) SCC 181 , wherein it has been specifically held that while exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court does not act as a Court of First Appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. It has been further held in the afore judgment that supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. Power under Article 227 of the Constitution of India is to be exercised where there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion arrived at by the Courts below. Relevant part of the judgment reads as under: “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber vs. Dass Estate (P) Ltd. has observed: (SCC pp. 101-102, Para 6) “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” 8. There cannot be any quarrel with the aforesaid exposition of law laid down by the Hon’ble Apex Court because admittedly, while exercising supervisory jurisdiction under Article 227 of the Constitution of India, this Court cannot act as court of First Appeal and as such, cannot re- appreciate the evidence on facts while ascertaining the correctness of the order impugned in such proceedings. However, this Court would be justified in exercising power under Article 227 of the Constitution of India in such like cases where the findings are not based upon the evidence available on record or same are so perverse that no reasonable person could possibly come to such a conclusion as has been arrived by the court. 9. Now being guided by the aforesaid principle of law laid down by the Hon’ble Apex Court with regard to exercise of supervisory jurisdiction under Article 227 of Constitution of India, this court proceeds to ascertain on the basis of material available on record whether findings returned by learned District Judge while setting aside the order passed by the learned trial court dismissing the application filed under Order 39 Rules 1 and 2 CPC are based upon material/evidence adduced on record by the respective parties or same is totally contrary to the record and the evidence. 10. No doubt, until partition is complete, parties are to be treated as co-owners in the joint land. It is well settled that possession of one of the co-sharers is possession of all in the eye of law, unless the person, who has been in exclusive possession asserts his title, in himself to the exclusion of the other co-sharers, which may amount to ouster. It is well settled that possession of one of the co-sharers is possession of all in the eye of law, unless the person, who has been in exclusive possession asserts his title, in himself to the exclusion of the other co-sharers, which may amount to ouster. All the co-owners have equal rights and coordinate interest in the property though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoy the possession equally to that of co-owner. It has been repeatedly held by Hon’ble Apex Court as well as this Court that a person, who has been in the possession of joint property, is holding the property not only of himself, but also in favour of other co-sharers. Similarly, by now it is well settled that mere fact that one of the party is recorded as co-owner of the suit land cannot deprive or suppress the right of other co-owners to utilize the land by raising construction. Issue with regard to rights and liabilities of the co-sharers has been aptly dealt with by Coordinate Bench of this Court in case titled Ashok Kapoor vs. Murtu Devi, 2016 (1) Shim. L.C. 207 : (2015) ILR H.P. 1312. Relevant Paras of aforesaid judgment are 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 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. (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 possess ion 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 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. (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.” 11. In the case at hand, pleadings adduced on record by the respective parties clearly reveal that parties to the lis are recorded as co-owners in the big chunk of the joint land. In the case at hand, pleadings adduced on record by the respective parties clearly reveal that parties to the lis are recorded as co-owners in the big chunk of the joint land. Copies of jamahbandis for the year, 1997-98, 2001-02, 2006-07, 2011-12 and 2016-17 with regard to suit land clearly reveal that though plaintiff and defendant are co-owners in the suit land, but in column of possession, they stand recorded in separate possession as per their respective shares. Though case of the plaintiff is that defendant has raised construction on the suit land more than his share, but no material worth credence ever came to be led on record to rebut the revenue entries, perusal whereof clearly reveals that defendant is raising construction on the suit land measuring khasra No. 565, which as per the revenue records is in possession of the defendant. Revenue record clearly reveals that defendant is in exclusive possession of the suit land comprising khasra No. 565 on the spot and it has been further claimed by the plaintiff that suit land comprising khasra No. 565 is more valuable being abutted to the road and same is trying to be grabbed by the defendant on the basis of his possession despite the fact that main Khata, in which entire suit land situate is not partitioned interse parties. On the other hand, defendant has categorically submitted that plaintiff is in possession of the land measuring khasra No. 522 and 384 which are also adjoining to the roadside. Plaintiff has not specifically denied being in possession of khasra Nos. 522 and 384. Order passed by the learned trial court, which subsequently came to be set-aside by the order passed by the learned District Judge clearly reveals that defendant successfully proved by placing on record the photographs that plaintiff has constructed house/structure on the suit land comprising khasra No. 384. Otherwise also, perusal of revenue record clearly reveals that plaintiff has already raised construction on khasra Nos. 522 and 384 and as such, he is estopped at this stage to claim that defendant cannot be permitted to raise construction on the suit land till the time same is not partitioned by metes and bounds, especially when there is no dispute that defendant is in exclusive possession of the land comprising khasra No. 565. 522 and 384 and as such, he is estopped at this stage to claim that defendant cannot be permitted to raise construction on the suit land till the time same is not partitioned by metes and bounds, especially when there is no dispute that defendant is in exclusive possession of the land comprising khasra No. 565. Learned trial court having taken note of the revenue record as has been detailed herein above, rightly arrived at a conclusion that when there is no dispute that parties are in possession of the separate khasra numbers in joint land and they have already raised some construction on the land in their possession and as such, there was no occasion for the learned District Judge to setaside the aforesaid finding on the ground that no family arrangement arrived inter-se parties was on record. True it is that family arrangement, if any, arrived inter-se parties never came to be placed on record by the defendant, but same time, revenue record as has been taken note by the learned trial court while dismissing the application filed under Order 39 Rule 1 and 2 CPC was never rebutted by the plaintiff. Revenue record i.e. Jamabandi for the year 1997-98, 2001-02, 2006-07, 2011-12 and 2016-17 clearly reveals that parties to the lis though are joint owner of the land in question, but they are in possession of the specific khasra number in the joint land in one khata, if it is so, non-placing of family arrangement/settlement, if any, by the defendant is of no consequence. Once plaintiff himself has not denied the factum with regard to his having possession over some khasra numbers as is reflected in the revenue record placed on record, coupled with the fact that he has already raised construction on khasra Nos. 522 and 384, which are in his possession, he cannot be permitted to seek discretionary relief of injunction from the competent court of law on the ground that land is still joint and yet to be partitioned by metes and bounds. Leaving everything aside, this Court finds that defendant is raising construction only on small portion of land whereas he is owner of the half portion of the entire suit land. Plaintiff as well as defendant have already raised some construction on the land adjoining to the road and much area is vacant which is available for partition. Leaving everything aside, this Court finds that defendant is raising construction only on small portion of land whereas he is owner of the half portion of the entire suit land. Plaintiff as well as defendant have already raised some construction on the land adjoining to the road and much area is vacant which is available for partition. Since it is not in dispute that defendant is already in possession of the land, over which he has raised some construction, coupled with the fact that plaintiff has already raised construction on some portion of the land adjoining to the road and area of the land is still left, it cannot be said that construction if permitted would amount to ouster of the plaintiff from the suit land. Since defendant is intending to raise construction over the small portion of the land in his possession, no prejudice would be caused to the plaintiff in case he is permitted to go ahead with the construction, especially when it stands established on record that plaintiff himself has already raised some construction on his portion of the land. 12. By now it is well settled that before grant of injunction, Court must be satisfied that the party praying for relief has a prima facie case and balance of convenience is in its favour. Besides above, while granting injunction, if any, Court is also required to consider that whether the refusal to grant injunction would cause irreparable loss to such a party. Apart from aforesaid well established parameters/ingredients, conduct of the party seeking injunction is also of utmost importance, as has been held by Hon’ble Apex Court in case M/s Gujarat Bottling Co. Ltd. and Others vs. The Coca Cola Co. and Others, AIR 1995 2372. In case a party seeking injunction fails to make out any of three ingredients, it would not be entitled to injunction. Ltd. and Others vs. The Coca Cola Co. and Others, AIR 1995 2372. In case a party seeking injunction fails to make out any of three ingredients, it would not be entitled to injunction. Phrases “prima facie case” and “balance of convenience” and “irreparable loss” have been beautifully interpreted/defined by Hon’ble Apex Court in case titled Mahadeo Savlaram Shelke vs. The Puna Municipal Corporation, JT 1995 (2) SC 504 relying upon its earlier judgment in case titled Dalpat Kumar vs. Prahlad Singh, (1992) 1 SCC 719 has held as under: “...the phrases “prima-facie case” and “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 forthe grant of 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 420 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. 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 discretion in granting or refusing the relief of ad interim injunction pending the suit.” 13. As has been stated hereinabove, conduct of the parties seeking injunction is very relevant for considering prayer made for injunction. In the case at hand, conduct of the plaintiff is not above the board. He after having raised construction on some portion of the joint land under his possession, filed suit restraining the defendant from raising construction on the pretext that suit land is still un-partitioned. In case titled M/s Gujarat Bottling Co. Ltd. and Others (supra), it has been categorically held that while passing interim order of injunction under Order 39 Rule 1 and 2 CPC, court besides taking into consideration three specific principles, i.e. “prima-facie case” and “balance of convenience” and “irreparable loss”, must also take into consideration the conduct of the parties. In the case at hand, interestingly, plaintiff himself has already raised construction on the best piece of joint land and as such, his action of stopping other co-owner, i.e. defendant from raising construction on the specific portion of the land, adversely reflect upon his conduct and as such, he is otherwise not entitled to discretionary relief of injunction. In the case at hand, interestingly, plaintiff himself has already raised construction on the best piece of joint land and as such, his action of stopping other co-owner, i.e. defendant from raising construction on the specific portion of the land, adversely reflect upon his conduct and as such, he is otherwise not entitled to discretionary relief of injunction. Once plaintiff has been not able to dispute that defendant is co-owner in the suit land and he is in possession over specific portion of the suit land, over which, he is raising construction coupled with the fact that he has already raised construction on the best portion of the land, he is estopped from claiming discretionary relief of injunction on the ground that since suit land is still unpartitioned, defendant cannot raise construction. 14. Hon’ble Supreme Court in Seema Arshad Zaheer and Others vs. Municipal Corporation of Greater Mumbai and Others, (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 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. (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.” 15. 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.” 14. Since in the case at hand, the defendants have become co-sharers in the suit land, after having purchased the land from the plaintiff and further the plaintiff himself has constructed house on his portion of land, as such, he cannot seek restrain order against the defendants from raising construction on their portion. In view of aforesaid conduct of the plaintiff, he is not entitled to any discretionary relief of injunction and learned first appellate court has rightly dismissed his application and set aside the order passed by learned trial Court, granting injunction in his favour. 15. There is yet another aspect of the matter that the plaintiff is filing successive appeals against the order of partition. Suit land stands partitioned not once, twice but thrice and every time, plaintiff has filed appeal against such order. It is not clear as to when the partition proceedings would be finalized. 16. Consequently, in view of above, present petition lacks merit and is accordingly dismissed. Judgment dated 30.11.2022 passed by learned Additional District Judge-I, Kangra at Dharamshala is upheld. 17. The petition stands disposed of in the afore terms, alongwith all pending applications.