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2024 DIGILAW 267 (HP)

Hari Kumar v. Amarjit

2024-04-22

SATYEN VAIDYA

body2024
JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioners have assailed the order dated 9.5.2022, passed by the learned District Judge, Kullu, whereby the order dated 1.10.2021, passed by the learned Civil Judge (Senior Division) Lahaul & Spiti at Kullu has been affirmed. 2. The defendants have been restrained from changing the nature and character of the suit land and occupying its best and valuable portion by way of raising construction thereon during the pendency of the suit or till the suit land is legally partitioned, whichever is earlier. 3. Petitioners herein are defendants in a suit filed by respondent No.1 before learned Senior Civil Judge, Lahaul & Spiti at Kullu. The parties hereafter shall be referred to by the same status as they hold before the learned trial Court. 4. Plaintiffs has sought a decree of permanent prohibitory injunction against the defendants in respect of land measuring 03-06-00 bighas, comprised in khata No. 1084, khatoni No. 1368, khasra No. 2206 and land measuring 03-08-00 bighas, comprised in khata No. 1081, khatoni No. 1365, khasra No. 2205, situated in Mohal and Phatti Dhyar, Tehsil and District Kullu. It has been prayed that the defendants be restrained from raising any construction over the land comprised in khasra No. 2206 and further they be also restrained from ousting or dispossessing the plaintiff from land comprised in khasra No. 2205. 5. The suit has been filed on the premise that the entire suit land is joint between the plaintiff, defendants and other co-owners. The defendants are not entitled to raise construction on joint land without getting the same partitioned. It is alleged that the defendants are trying to usurp the best portion of the suit land by raising construction. 6. The defendants have put up their contest to the claim of the plaintiff by stating that the plaintiff has already raised construction on the land which falls in his share. A plea of a family arrangement has also been raised in defence. As per defendants, they already have old structures on the suit land and in order to make additions new construction is sought to be done by defendant No.3 for which he had already raised RCC pillars. The defendants have also claimed that they have not exceeded their share in the suit land. 7. As per defendants, they already have old structures on the suit land and in order to make additions new construction is sought to be done by defendant No.3 for which he had already raised RCC pillars. The defendants have also claimed that they have not exceeded their share in the suit land. 7. Plaintiff by way of his replication has admitted his possession over a constructed area on the suit land. It has been tried to be explained that the plaintiff had purchased old house and Khud from co-sharers Chume Ram and Dile Ram and after its purchase, improvements have been made including the construction of bathroom etc. 8. Learned trial Court allowed the application of the plaintiff and has restrained the defendants, as noticed above, till the final disposal of the suit. Two of the defendants namely Hari Kumar and Surender Kumar assailed the order passed by the learned trial Court by way of appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure before the learned District Judge, Kullu but remained unsuccessful, hence the instant petition. 9. I have heard the learned counsel for the parties and have also gone through the record carefully. 10. It has emerged from the pleadings of the parties that the total area of joint land between the parties is more than 6 bighas and 14 biswas. Plaintiff has claimed himself to be the owner to the extent of 4 bighas and 11 biswas in khasra No. 2206 and 4 bighas and 13 biswas in khasra No. 2205. Thus, the total share of the plaintiff is about 9 biswas. It has also been admitted by the plaintiff that he is holding possession of constructed area in khasra No. 2206. The extent of constructed area in occupation of plaintiff has not been specifically mentioned. 11. Learned trial Court has allowed the prayer of the plaintiff to the extent, as noticed above, on the premise that the defendants are already in occupation of some portion of the suit land and in such background, the vacant portion of the suit land has assumed greater significance in terms of its value and utility. Learned trial Court found that in case the defendants succeed in raising further construction, they will be able to grab the best portion of the suit land to the prejudice of plaintiff. Learned trial Court found that in case the defendants succeed in raising further construction, they will be able to grab the best portion of the suit land to the prejudice of plaintiff. The factum of plaintiff also being in occupation of constructed area of the suit land has not weighed with learned trial Court as a significant factor. Thus, on such appraisal, learned trial Court proceeded to grant the injunction. 12. Learned appellate Court affirmed the order passed by the learned trial Court by affirming the findings recorded by it. The impugned order passed by learned appellate Court shows that the entire material discussed by learned trial Court has been reproduced in verbatim. In this manner, the learned appellate Court has not added anything to what has been held by the learned trial Court. 13. A Coordinate Bench of this Court, while deciding CMPMO No. 52 of 2014, titled as Ashok Kapoor vs. Murtu vide judgment dated 24.6.2015 has held 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. 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”. 14. In Kalawati vs. Netar Singh & others, reported in AIR 2016 (HP) 85 , it has been further held as under:- “10. It would be evident from the decision, the mere fact that the parties are co-owners and joint owners etc. is not the sole criteria for granting or refusing injunction, the conduct of the parties too plays an important role and in such like cases, the plaintiff conduct has to be free from blame so as to enable the court to conclude that the plaintiff has approached the Court with clean hands. But here is a case where the petitioner though claims herself to be a joint owner with the respondents after having already raised construction over the suit land seeks an injunction against the respondents without even disclosing this fact. 11. The injunction being an equitable relief, the person seeking injunction must come with clean hands. The well known mechanism that applies in such matter is “he who seeks equity must do equity”. Since the petitioner has admittedly raised construction of her house(s) on a portion of the suit land, she is estopped and has waived of her right to assail and question the construction being raised by the respondents. The fact that the petitioner has not approached the court with clean hands in itself is a sufficient ground for not granting the relief of injunction”. 15. As noticed above, the joint land between the parties is comprised in two separate khatas and measures more than 6 bighas in totality. The fact that the petitioner has not approached the court with clean hands in itself is a sufficient ground for not granting the relief of injunction”. 15. As noticed above, the joint land between the parties is comprised in two separate khatas and measures more than 6 bighas in totality. Thus, at the time of partition, the equities between the co-sharers have to be balanced by keeping in view the nature of entire joint land. The equities between the co-sharers is settled by looking at the entire land viz. its location, value and potentiality etc. 16. It is not the case of the plaintiff that the defendants are raising construction on the entire suit land. Nothing also has been placed on record to suggest even prima-facie that the land being utilized by the defendants exceeds their share in the joint holding. Plaintiff has also not been able to justify prima-facie that the construction being raised by the defendants will prejudice their rights. The material placed on record by the plaintiff does not suggest that the land on which the defendants are raising the construction has special value attached to it. It was only by way of conjecture that the learned trial Court held that the allowance in favour of defendants to raise construction will affect the best portion of the suit land. 17. In order to succeed in getting interim injunction against the defendants, the plaintiff has to specifically plead and prima-facie satisfy the court that some exclusivity was attached to that portion of joint land, which was being utilized by the defendants for raising construction or by doing so, defendants would exceed in their share. Further the fact that the plaintiff himself is in occupation of constructed portion on the suit land is determinative factor to assess the case of the plaintiff for interim injunction, more particularly when the plaintiff has not shown his inclination to share such constructed area with other co-sharers or to surrender his rights in such area at the time of partition. 18. The defendants have also specifically alleged that the plaintiff had raised construction on part of the suit land about 10-11 years back. This assertion of the defendants has been controverted by the plaintiff by saying that he was in possession of house and “Khud”, which was purchased by him from co-sharer. 18. The defendants have also specifically alleged that the plaintiff had raised construction on part of the suit land about 10-11 years back. This assertion of the defendants has been controverted by the plaintiff by saying that he was in possession of house and “Khud”, which was purchased by him from co-sharer. Plaintiff admitted having made improvements in such constructed area and also to have made additions thereto in the shape of bathroom etc. 19. There is no absolute rule that a co-owner cannot raise construction on joint land. In order to restrain a co-owner from doing so, the aggrieved person has to plead and prove that by doing so, the defendants shall succeed in usurping the most valuable and best portion of the suit land to the prejudice of the objector(s). 20. In the facts of this case, there is no such material on record on the basis of which, it could be prima-facie held that by raising construction, the defendants will be able to usurp the best portion of the suit land. There is nothing to suggest that the land on which construction is being raised by the defendants has more exclusivity or special value attached to it. That being so, coupled with the fact that the plaintiff himself is in occupation of constructed area on the suit land after having made additions thereto, he cannot be said to have made out a prima-facie case for grant of injunction. Plaintiff also has not been able to show that how the balance of convenience was in his favour or the allowance of construction in favour of the defendants would put him to such loss, which cannot be compensated in terms of money. 21. Learned trial Court and learned appellate Court have completely missed out the most relevant and important aspect of the matter and for such reason, the impugned orders cannot be sustained. 22. In result, the petition is allowed. Order dated 9.5.2022, passed by the learned District Judge, Kullu, whereby the order dated 1.10.2021, passed by the learned Civil Judge (Senior Division) Lahaul & Spiti at Kullu has been affirmed is set aside. The application of the plaintiff for interim relief is ordered to be dismissed. Pending applications, if any, also stand disposed of.