Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 499 (HP)

Sunita Devi v. Kamaljeet

2025-03-25

SATYEN VAIDYA

body2025
JUDGMENT : (Satyen Vaidya, J.) Heard. 2. The petitioner is aggrieved against the order dated 2.3.2024, passed by the learned District Judge, Hamirpur in CMA No. 44 of 2023, whereby the order dated 21.8.2023, passed by the learned Civil Judge, Court No.2, Hamirpur in CMA No. 309 of 2023 in Civil Suit No. 115 of 2023, has been affirmed. 3. Petitioner/plaintiff has filed Civil Suit No. 115 of 2023 on the files of learned Civil Judge, Court No.2, Hamirpur. She has prayed for a decree of permanent prohibitory injunction against the defendant to the effect that the defendant and his family members, agents, servants or assignees be restrained from digging the suit land for raising construction in any manner and to change the nature of the suit land, covering best portion of the suit land more than his due share. 4. The suit land has been described as land comprised in Khata No. 148, Khatauni No. 156, Khasra No. 177-178, Kite-2, total measuring 00-40-18 hectares, situated in Mohal Lahar, Tehsil and District Hamirpur. 5. Along with the plaint, the plaintiff also filed an application under Order 39 Rules 1 and 2 of the CPC, seeking interim injunction against the defendant in the aforesaid terms. 6. The defendant has contested the claim of the plaintiff by filing written statement, as also reply to the application for interim injunction. 7. Learned trial Court vide order dated 21.8.2023 declined the prayer of plaintiff for interim injunction. The appeal filed by the plaintiff under Order 43 Rule 1 (r) of the Code against the order dated 21.8.2023, passed by the learned trial Court has also been dismissed by the learned District Judge, Hamirpur vide impugned order dated 2.3.2024. 8. Both the Courts below have refused to grant the prayer for interim injunction, as made by the plaintiff, by holding that the plaintiff has not been able to establish prima-facie case. It has been noticed by the learned Courts below that the plaintiff had not pleaded complete facts in the plaint. He had sent a communication dated 10.7.2023 to the Town & Country Planning Authority that the defendant had already raised construction over the suit land. From the conduct of the plaintiff, learned Courts below have found that she is not entitled for equitable relief. 9. Mr. He had sent a communication dated 10.7.2023 to the Town & Country Planning Authority that the defendant had already raised construction over the suit land. From the conduct of the plaintiff, learned Courts below have found that she is not entitled for equitable relief. 9. Mr. Suneet Goel, learned Senior Counsel for the petitioner has assailed the aforesaid findings on the ground that such findings do not confirm the pleadings on record. As per him, the plaintiff had made all necessary disclosures in the plaint and was not guilty of any conduct, so as to deny her the equitable relief. He submits that the defendant had started raising construction without completion of the partition proceedings and in such view of the matter, the plaintiff was entitled to interim relief as prayed in the application under Order 39 Rules 1 and 2. 10. On the other hand, learned counsel for the defendant has supported the impugned order. 11. A copy of the plaint placed on record reveals that it was verified on 12.7.2023. In para-4 of the plaint, it is averred that the defendant had started digging the suit land for raising construction and had also started collecting construction materials over the suit land, covering more than his due share. 12. Learned Courts below have prima-facie found that on the date of filing of the suit, the defendant had already raised some construction. This inference was drawn on the basis of a communication dated 10.7.2023, addressed by the plaintiff to the Town & Country Planning Authorities, complaining that the defendant had already raised some construction without permission and sanction under the Town & Country Planning Act. 13. On 11.3.2025, after hearing this matter for some time, this Court had directed the plaintiff to produce on record communication dated 10.7.2023. Today, though a copy of the required communication has not been produced but a copy of communication dated 11.7.2023 written by the plaintiff to the SDO (C), Hamirpur has been placed on record. It is contended that the communication dated 10.7.2023 issued to the Town & Country Planning Authorities was also to the same tune. Contents of para-2 of this communication reveal that on 11.7.2023, the plaintiff herself had written to SDO (C), Hamirpur that despite pendency of partition proceedings between the parties, the defendant taking the benefit of the vacations in the Courts was doing construction work on war footing. Contents of para-2 of this communication reveal that on 11.7.2023, the plaintiff herself had written to SDO (C), Hamirpur that despite pendency of partition proceedings between the parties, the defendant taking the benefit of the vacations in the Courts was doing construction work on war footing. Learned Senior Counsel for the plaintiff was fair enough to place on record a photograph showing the status of construction raised by the defendant on the suit land immediately before filing of the suit i.e. when communications were addressed by the plaintiff to the Town & Country Planning Authorities and SDO (C), Hamirpur. These documents have been taken on record. 13. Thus, the findings returned by the learned Courts below that the plaintiff had not made complete and true disclosures of facts in the plaint cannot be faulted with. The photograph placed on record today reveals substantial amount of construction having been raised by the defendant, which cannot be expected to have been raised over night, which includes completion of foundation, raising of pillars and raising of bricks masonry walls up to the level approximately 3 to 4 feet. 14. Even otherwise, to claim an injunction by alleging violation of rights of his joint property, one has to make out a clear case of prejudice being caused to him/ her by such alleged interference. In the plaint, it has not been clearly spelled out as to how the portion of land over which the defendant was raising construction was the best portion of the joint land. It has also not been shown as to why such portion was exclusive or has special properties, if any. That being so, the plaintiff otherwise also could not have succeeded in obtaining the interim injunction without showing any exclusivity to the land sought to be utilized by the other co-owner and also the prejudice likely to be suffered by the plaintiff. In this view of the matter, it can be easily said that the plaintiff had failed to establish a prima-facie case. 15. Thus, this Court does not find any reason to interfere with the impugned order. However, it can be noticed that another assertion of plaintiff is that the defendant is raising construction on land, which exceeds his share in the joint land. 15. Thus, this Court does not find any reason to interfere with the impugned order. However, it can be noticed that another assertion of plaintiff is that the defendant is raising construction on land, which exceeds his share in the joint land. Though, for such assertion at this stage, no tangible material has been placed on record, however, it is settled that no co-sharer can have right on the joint land more than the share he holds. Therefore, the equities can be settled at this stage by directing the defendant to not to utilize the suit land in access of his share either by raising construction or in any other manner. 16. Accordingly, the petition is disposed of by affirming the order dated 2.3.2024, passed by the learned District Judge, Hamirpur in CMA No. 44 of 2023 with modification that the defendant shall not use the suit land in excess of his share in any manner whatsoever. Pending applications, if any, also stand disposed of.