JUDGMENT : J y o t s n a R e w a l D u a , J. Suit for permanent prohibitory injunction and in the alternative for joint possession instituted by the appellant, was allowed by the learned trial Court by passing a decree of permanent prohibitory injunction against the respondents. The decree was reversed by the learned First Appellate Court, resulting in dismissing of the suit. Aggrieved, the plaintiff has come up in the instant Regular Second Appeal. 2 . This appeal was admitted on 14.03. 2 016 on the f o l l o w i n g s u b s t a n t i a l q u e s t i o n s o f l a w :- 1. Whether on account of mis-appreciation of the pleadings and law and also misreading of the oral as well as documentary evidence available on record, the findings recoded by Courts below are erroneous and, as such, the judgment and decree impugned in tis appeal being perverse and vitiated is not legally sustainable? 2. Whether a joint land which has been divided/partitioned for particular purpose i.e. cultivation can be diverted to an inconsistent user by a co-sharer/co-owner more particularly during the pendency of partition proceedings qua the joint land before learned AC 1st Grade? The above substantial questions of law are inter connected and are being adjudicated hereinafter. 3 . F a c t s l e a d i n g t o f i l i n g o f t h i s a p p e a l . 3 ( i ) The appellant filed civil suit on 24.03.2012 with the pleadings that: 3 ( i ) ( a ) He alongw i th defendants/respondents No.1, 3 and 4 is recorded as joint owner in possession of the suit land comprised in Khata No.36/36, Khatauni No.39/39,Khasra Nos. 80, 82, 84, 87 and 89, Kita 5, measuring 36-05 sq mtrs. situated in Village Gatwar, Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P. Plaintiff’s share in the suit land was 9.15 bighas. 3 ( i ) ( b ) Part i t i on proceed i ngs of the su i t land were pending before the revenue authorities. Mode of partition had already been prepared on 14.12.1993 (Ex.P-2). situated in Village Gatwar, Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P. Plaintiff’s share in the suit land was 9.15 bighas. 3 ( i ) ( b ) Part i t i on proceed i ngs of the su i t land were pending before the revenue authorities. Mode of partition had already been prepared on 14.12.1993 (Ex.P-2). An interim order dated 21.01.2000 had been passed by AC 1st Grade, Ghumarwin qua the suit land. 3 ( i ) ( c ) On 22.0 3 .2012, the defendants had collected wooden material over the suit land for constructing a temporary shed. This was done with an intent to occupy the most v aluable portion of the suit land. Defendants No.3 and 4 had also started constructing a water storage tank and danga over the suit land in order to occupy the land in excess of their shares. 3 ( i ) ( d ) The defendants d i d not pay heed to pla i nt i ff’s requests for not raising construction over the suit land till the same was partitioned. Hence, the suit was instituted for grant of decree of permanent prohibitory injunction and in the alternative for joint possession. 3 ( i i ) Defendants No.1, 2 and 4 contested the su i t by filing a combined written statement. They denied having caused any interference in the plaintiff’s share over the suit land. The other allegations levelled in the plaint were also denied. The defendants also pleaded that the plaintiff had also raised construction of his house, cow-shed, latrine and bath room over his share in the suit land. After completing his entire construction, plaintiff malafidely wanted to restrain the defendants from raising construction over their portion of the suit land. 3 ( i i i ) . The pla i nt i ff i n h i s repl i cat i on re i terated h i s earl i er assert ions and further pleaded that he had constructed his house, cow-shed etc. over the suit land during the year 1977; The defendants had also raised construction of their houses over the suit land; But the defendants wanted to occupy the suit land in excess of their shares. 3 ( i v ) . Pla i nt i ff appeared i n the w i tness box as PW-1. over the suit land during the year 1977; The defendants had also raised construction of their houses over the suit land; But the defendants wanted to occupy the suit land in excess of their shares. 3 ( i v ) . Pla i nt i ff appeared i n the w i tness box as PW-1. Copy of jamabandi for the year 2008-09 was tendered as Ex. P-1, mode of partition dated 14.12.1993 as Ex.P-2 and copy of order dated 21.01.2000 passed by AC 1st Grade Ghumarwin as Ex.P-3. During his cross-examination, plaintiff stated that defendants were trying to construct a bamboo shed in his courtyard. PW-2 HHC Rajak Mohammad proved copy of GD entry dated 22.03.2012 entered in the police station at the instance of the plaintiff as Ex.PW-2/A. Claim against defendant No.2 was not stressed much by the plaintiff. Defendants No.3 and 4 stepped in the witness-box as DW-1 and DW-2 respectively. They maintained their pleaded defence. The defendants denied interfering over the suit land as alleged by the plaintiff. They stated that the plaintiff was not allowing the suit land to be partitioned even though he had himself filed partition proceedings in the year 1990. While denying the suggestion of raising any construction over best portion of the suit land, they stated that they were only trying to put a grass roof to provide shade for their cattle. They also denied constructing over the suit land in excess of their shares. 3 ( v ) . Learned Trial Court after considering the pleadings and evidence adduced by the parties, held that the defendants did not state that they were willing to raise construction of their house only over their shares in the suit land. The suit filed by the plaintiff was decreed for permanent prohibitory injunction. The plaintiff did not press for decree of possession before the learned Trial Court. 3 ( v ) In the appeal carried by the defendants, learned First Appellate Court held that the plaintiff’s deposition about defendants attempting to construct a bamboo shed in his courtyard was beyond pleadings and could not be looked into. Learned Appellate Court also observed that the defendants had denied:- interfering with the plaintiff’s posses sion, raising any construction on the best or valuable portion of the suit land or that they were in possession of the suit land in excess of their shares. Learned Appellate Court also observed that the defendants had denied:- interfering with the plaintiff’s posses sion, raising any construction on the best or valuable portion of the suit land or that they were in possession of the suit land in excess of their shares. Learned First Appellate Court noted that the plaintiff had himself pleaded and deposed that all the co-sharers were in separate possession of the suit land and thus, concluded that defendants No.1,3 and 4 had right to raise construction over the land which was in their possession. The remedy, if any, available to the plaintiff was to seek partition and not to injunct the defendants from the suit land. The appeal was accordingly allowed giving rise to the instant Second Regular Appeal. 4 . Learned counsel for the plaintiff contended that the learned First Appellate Court did not properly appreciate the pleadings and the evidence adduced by the parties. Parties were co-owners of the suit land. Plaintiff had proved raising of construction by the defendants over the suit land in excess of their shares. The defendants had admitted having raised construction over the portion of the suit land in excess of their shares. The construction raised by the plaintiff over the suit land was in the year 1977 i.e. much prior to the institu tion of the partition proceedings. Since the partition proceedings had been instituted by the plaintiff in the year 1990, the defendants could not have carried out any construction over the suit land till the same was partitioned. Reliance in support of this submission was placed upon AIR 1961 Punjab 528 (Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram), AIR 1992 Punjab and Haryana 219 (Om Prakash and others Vs. Chhaju Ram) and 2007(1) Shim LC 389 (Shiv Chand Vs. Manghru and other). The respondents defended the impugned judgement and decree passed by the learned First Appellate Court. 5 . Daya Ram Nagina Ram), AIR 1992 Punjab and Haryana 219 (Om Prakash and others Vs. Chhaju Ram) and 2007(1) Shim LC 389 (Shiv Chand Vs. Manghru and other). The respondents defended the impugned judgement and decree passed by the learned First Appellate Court. 5 . Having heard learned counsel on both sides and o n c o n s id e ring t h e ca s e r e c o rd, my o b s e r v a t i o n s in t h e ca s e vis-à-vis on the substantial questions of law are as under:- 5 ( i ) It i s adm i tted case of the part i es that the su i t land was though joint between them, but all the co-sharers were in separate possession over the same pursuant to a family settlement arrived at in the year 1980. 5 ( i i ) It i s the pla i nt i ff’s pleaded case that h i s share over the su it land is to the extent of 9.15 bighas and that he had constructed his house over the suit land. The plaintiff moved for partitioning the suit land under Section 123 of the H.P. Revenue Act during the year1990 before the AC 1st Grade Ghumarwin, District Bilaspur, H.P. The plaintiff alleged that the defendants had collected wooden material on 22.03.2012 in order to occupy valuable portion of the suit land. Plaintiff’s case is that the defendants cannot raise any construction over the suit land till the joint land is partitioned between the co-owners. Partition proceedings initiated by the plaintiff in the year1990 are still stated to be pending adjudication. Defendants have alleged that the plaintiff is not allowing the culmination of partition proceedings and has successfully dragged the partitioned proceedings for years together. To a query put to the learned counsel for the appellant, it was informed that partition proceedings said to have been instituted by the plaintiff in the year 1990, are still pending. 5 ( i i i ) The pla i nt i ff has ne i ther spec i f i cally pleaded nor deposed that the defendants had interfered with his separate posses sion over the suit land. The defendants have denied interfering with plaintiff’s possession over the suit land. 5 ( i i i ) The pla i nt i ff has ne i ther spec i f i cally pleaded nor deposed that the defendants had interfered with his separate posses sion over the suit land. The defendants have denied interfering with plaintiff’s possession over the suit land. 5 ( i v ) The pla i nt i ff has not led any ev i dence to prove h i s contention that the defendants were raising any construction and that construction was over and above their shares in the suit land. No site plan, tatima, demarcation report, photographs etc. for proving his contentions were even placed on record much less proved. 5 ( v ) Plaintiff’s contention in the suit is that the defendants cannot be permitted to raise any construction till the partition proceedings are finalized. In the given facts of the case, when the plaintiff has himself raised construction over the suit land and partition proceedings are pending ever since 1990, he cannot be permitted to injunct the defendants from raising construction, more so, when it is not proved on record that the defendants were raising any construction either in the plaintiff’s share or in excess of their own shares. In this regard, reference can be made to following pronouncements:- In ( 2 0 1 0 ) 3 S h i m l a L . C . 2 0 5 , t i t l ed P a y a r S i n g h V s . N a r a y a n D a s s a n d o t h e r s , t h e r e s po n d e n t s pl e ad e d themselves to be in settled separate possession of joint land in family partition over which they were raising construction. They also took up a stand that petitioner had also constructed his house over the land in his possession. The Court upheld the contentions of the respondents. Following observations made in the judgment are material :- “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. The Court upheld the contentions of the respondents. Following observations made in the judgment are material :- “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 construction 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 arrangement. 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. In revision the scope is limited as held in The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another Vs. Ajit Prasad Tarway, Manager (Purchase and 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.” In ( 2 0 1 6 ) 1 S h i m . L . C . 2 0 7 , titled A s h o k K a p o o r Vs. It has not been established that the view taken by the learned District Judge does not emerge from the material on record.” In ( 2 0 1 6 ) 1 S h i m . L . C . 2 0 7 , titled A s h o k K a p o o r Vs. M u r t u D e v i , follow i ng pr i nc i pl e s w e r e c u ll e d o u t af t e r considering several judgments on the inter-se rights and liabilities of co-sharers :- “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. 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 co-owners, it is not open to any body to dispute the arrangement without the consent of others except by filing a suit for partition. 8. 7. Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, 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. 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. (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 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.” In judgment dated 03.09.2021, delivered in C M P M O N o . 5 5 5 o f 2 0 1 8 , A j a y K u m a r V s . 5 5 5 o f 2 0 1 8 , A j a y K u m a r V s . I s h w a r D u t t , i t was held that 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. Placing reliance upon various authorities, defend a nts in C M P M O N o . 7 7 o f 2 0 2 1 , titled S m t . V y a s a D e v i Vs. H a r i s h K u m a r we r e pe r m i tted to unde r t a ke construction inter-alia on the ground that the plaintiff had also carried out construction on the joint land. Material observations made by the Court on facts are as under :- “10. The facts involved in the case have been narrated by me hereinabove and the same are not being repeated for the sake of brevity. It is not in dispute that the parties are co-sharers of the suit land but the petitioners herein are recorded to be in possession of the portion of the suit land in issue alongwith other co-sharers. It is further not in dispute that the respondents herein are not recorded to be in possession of the suit land. It is also not in dispute that the respondents herein have also carried out construction activities by raising constructions over the joint land, as is evident from the record. In these circumstances, this Court is of the considered view that the petitioners herein, who besides being the co-owners of the suit land are also recorded to be in possession thereof, cannot be estopped from raising construction pending the adjudication of the civil suit. In these circumstances, this Court is of the considered view that the petitioners herein, who besides being the co-owners of the suit land are also recorded to be in possession thereof, cannot be estopped from raising construction pending the adjudication of the civil suit. It is settled law that injunction cannot be granted against a co-sharer and further as the respondents herein themselves have constructed their houses over the joint suit land, in these circumstances, they canno t be permitted to restrain other co-sharers, i.e. present petitioners, from doing so. The construction, which is being carried out by the petitioners, however obviously shall be subject to the final adjudication of the suit as also partition proceedings, if any, and if the area upon which construction being carried out by the present petitioners ultimately falls in the share of the plaintiffs in partition proceedings, then, of course, consequences will ensue. However, this does not means that till the suit land is partitioned, the petitioners herein should be restrained from raising construction over the parcel of the suit land in their possession.” CMPMO No.522/2017, decided on 29.11.2018 titled Chanchal Kumar Vs. Prem Parkash & Anr. was a case where plaintiff was one of the co-sharers over the suit land. He raised construction and filed suit for prohibitory injunction to restrain the respondents from raising construction on the vacant portion of land. The Court held that :- “…..Once, plaintiff himself raised construction over one portion of the land, it is not understood, how he could raise objection, if any, qua the construction on the other portion of land, by the defendants, who are admittedly co-owners of suit land to the extent of one half share. Needless to say, applicant, while seeking relief of injunction is required to show that he/she has a prima facie case in his/her favour and balance of convenience also lies in his/her favour, but, i n the instant case, aforesaid basic ingredients/conditions are totally missing, rather, very conduct of the plaintiff suggests that he wants to take advantage of the situation.” The decisions cited for the appellant are not applicable to the given fact situation. It may also be noticed that the plaintiff, who had alleged raising construction over the suit land by the defendants had given up the relief of decree of possession before the learned Trial Court. It may also be noticed that the plaintiff, who had alleged raising construction over the suit land by the defendants had given up the relief of decree of possession before the learned Trial Court. Appreciation of facts and law by both the learned Courts below, is in order. Accordingly, substantial questions of law are decided against the appellant. For the foregoing reasons, there is no merit in the present appeal. The same is accordingly dismissed. Parties to bear their own costs. The pending miscellaneous application(s), if any, also stand disposed of.