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2025 DIGILAW 459 (HP)

Sarwan Ram v. Veena Kumari

2025-03-24

SATYEN VAIDYA

body2025
JUDGMENT : (Satyen Vaidya, J.) By way of instant petition, order passed by learned District Judge, Una on 24.10.2024 in Civil Miscellaneous Appeal No.30/2024 has been assailed, whereby the order dated 10.06.2024, passed by learned Senior Civil Judge, Una in CMA No.1755/2023 has been set-aside in appeal of the defendants under Order 43 Rule 1(r) of the Code of Civil Procedure (for short, “the Code”). 2. Brief facts, necessary for adjudication of the petition are that the petitioner/plaintiff has filed a suit against the respondents/defendants, which is pending on the files of learned Senior Civil Judge, Una, as Case No.132 of 2023. The petitioner/plaintiff has prayed for a decree in the following terms: “It is, therefore, prayed that a decree for permanent injunction restraining the defendant from changing the existing nature and character by raising any sort of construction or otherwise taking exclusive possession by ousting the plaintiff from joint possession of land measuring 0-07-92 Hects, comprised of Khewat No.396 Khatauni No.574 Khasra No.3287 and 3294 as entered in the jamabandi for the year 2018-2019 situated in Mohal Jakhera Sub Tehsil Mehatpur Basdehra, Tehsil and District Una, HP jointly owned and possessed by the parties along with other co-sharers till final partition of the suit land and in the alternative decree for mandatory injunction directing the defendant to remove the malba of super structure so raised herein after during the pendency of the suit and to put the land in suit in its original position as it exist today may kindly be granted in favour of the plaintiff and against the defendant with costs.” 3. The aforesaid relief has been claimed on the premise that the suit land is joint and un-partitioned between the plaintiff, defendants and other co-sharers. Though, the partition had been ordered by the Competent Authority, but a revision petition challenging the said order was pending before the Divisional Commissioner, Kangra. Defendant No.1 is stated to have purchased a share in the suit land from one of the co-sharers. It is also alleged that the defendants are threatening to utilize a valuable piece of suit land abutting the village link road for raising construction and to oust the plaintiff forcibly. 4. The defendants by way of written statement have taken a stand that the suit land was part of big chunk of land jointly owned and possessed by the parties and other co-sharers. 4. The defendants by way of written statement have taken a stand that the suit land was part of big chunk of land jointly owned and possessed by the parties and other co-sharers. It was pointed out that the plaintiff was holding specific possession over Khasra Nos.3291, 3298 and 3297 in excess of his share. The abadi of the plaintiff is alleged to be situated over Khasra Nos.3291 and 3298. As per defendants, they had raised construction up to the foundation level in January 2022 and the suit was filed at a belated stage to harass the defendants. In addition, various legal objections as to maintainability of suit, cause of action, estoppel etc. have also been taken. 5. An application under Order 39 Rules 1 and 2 of Code was also filed by the plaintiff along with the suit, seeking interim injunction against the defendants. Learned trial Court allowed the application of the plaintiff vide order dated 10.06.2024 by directing both the parties to maintain status quo qua nature, construction and possession over the suit land. 6. The defendants assailed the order passed by the learned trial Court by filing an appeal under Order 43 Rule 1(r) of the Code. Learned District Judge, Una by impugned order has allowed the appeal of defendants and the application of plaintiff under Order 39 Rules 1 and 2 of CPC has been ordered to be dismissed after setting aside the order of learned trial Court. 7. I have heard learned counsel for the petitioner and have also gone through the record. 8. The suit land, as described by the plaintiff in the plaint, is comprised in Khewat No.396, Khatauni No.574, Khasra Nos.3287 and 3294, measuring 0-07-92 hectares. The defendants have taken an objection that the joint land between the parties is much more than what is described in the plaint. 9. Learned appellate Court has taken cognizance of the fact and while considering the contents of jamabandi for the year 2018-2019, concluded that Khewat No.396 consisted of total 11 Khasra numbers, whereas the plaintiff has chosen to file the suit with respect to only two Khasra numbers. Learned appellate Court also found that the entire Khewat No.396 was jointly owned by the parties and other co-sharers. Learned appellate Court also found that the entire Khewat No.396 was jointly owned by the parties and other co-sharers. Learned trial Court appears to have missed this aspect of the matter, which otherwise was relevant for adjudging the existence of prima facie case in favour of the plaintiff. 10. Another fact recorded by learned appellate Court is that though, the plaintiff while filing the suit claimed that he was under threat from the defendants to raise construction on suit land, the photographs filed by the plaintiff along with plaint revealed that the foundation of construction raised by the defendants was complete. In addition, the pillars had already been raised and even the walls up to the height of 3-4 feet had been constructed. 11. Further by placing reliance on the judgment passed by a coordinate Bench of this Court in Ashok Kapoor vs. Murtu Devi, 2016(1) Shimla Law Cases 207, learned appellate Court held that in the given facts of the case, ouster of the plaintiff by the action of the defendants was not made out. It has also been taken note by learned appellate Court that there was no denial by the plaintiff to the allegation that he himself raised the construction on joint land comprised in Khasra Nos.3291 and 3298, which were also part of Khewat No.396. Taking above facts into consideration, learned appellate Court has come to the conclusion that the plaintiff had failed to establish prima facie case. The balance of convenience and irreparable loss has also been found to exist in favour of the defendants. 12. After perusing the material on record, I do not find any reason to differ from the view taken by learned appellate Court, which is a plausible view in the facts available on record. 13. Preventing the relief of injunction is granted at the discretion of the Courts. Whereas perpetual injunction can be granted in terms of provisions of Section 41 of the Specific Reliefs Act, temporary injunction is governed by the provisions of the Code. In order to succeed in getting the relief of temporary injunction, one has to qualify three ways test. He has to show existence of prima facie case, balance of convenience and irreparable loss in his favour. Thus, the Courts while deciding the prayer for interim injunction have to access the facts and circumstances of each case at the touch stone of aforesaid principles. 14. He has to show existence of prima facie case, balance of convenience and irreparable loss in his favour. Thus, the Courts while deciding the prayer for interim injunction have to access the facts and circumstances of each case at the touch stone of aforesaid principles. 14. The fact that the plaintiff has filed suit with respect to only a portion of the entire joint land is clearly evident on record. The entire area of joint Khata has not been mentioned by the plaintiff in his pleadings and thus, the details as to the nature of the remaining portion of joint land is missing. Injunction is an equitable relief. The plaintiff has failed to explain his conduct as to why the details of entire joint land between the parties has not been mentioned in the plaint. The adverse inference can be drawn against the plaintiff for such glaring omission. At the time of partition, the entire joint land in Khata is to be taken into consideration and not any specific portion thereof. The equity between the co-sharers is settled by looking at the entire land vis a vis its location, value and potentiality etc. 15. It is not the case of the plaintiff that the defendants were trying to raise construction by exceeding their share in the suit land. Additionally, the plaintiff had omitted to reveal the fact that he had his abadi on a portion of the joint land, which fact, when disclosed by the defendants, was again not specifically denied by the plaintiff. 16. The plaintiff has made a bald assertion in the plaint that the land sought to be utilized is valuable and best portion of the joint land. There is no detail as to how such portion is most valuable and what is exclusive about the same. Without disclosing the nature of other portions of joint land, it is unreasonable for the plaintiff to claim that portion of suit land to be most valuable, which is being utilized by the defendants for raising construction. 17. Another fact that dis-entitles the plaintiff from grant of interim injunction is the delay on his part in approaching the Court. Learned appellate Court has found that even at the time of filing of suit, substantial construction had been raised by the defendants. 17. Another fact that dis-entitles the plaintiff from grant of interim injunction is the delay on his part in approaching the Court. Learned appellate Court has found that even at the time of filing of suit, substantial construction had been raised by the defendants. There is not even a whisper in the pleadings of the plaintiff that he had no knowledge about the construction being raised by the defendants before filing of the suit. The amount of construction found on the spot at the time of filing of suit could not have been raised overnight. 18. In result, no interference is required in the impugned order and the petition is accordingly dismissed along with pending application(s), if any. 19. The observations made hereinabove are only for the purpose of adjudication of instant petition.