A co-owner seeking injunction against another co-owner for restraining construction on jointly owned land must prove adverse effects on their legal rights or lawful enjoyment of the land, especially if the plaintiff has already raised construction on the same land.

Vivek Singh Thakur, J.

Predecessor of the respondents in present appeal, late Shri Bakshi Ram (hereinafter referred to as the plaintiff) had filed a suit against appellants (hereinafter referred to as defendants) seeking permanent prohibitory injunction restraining them, their agents, servants and assignees from raising construction in suit land, jointly owned and possessed by plaintiff and defendants along with other co-sharers, on the ground that defendants were bent upon to cover best portion of suit land forcibly by raising construction over it without consent of plaintiff and without getting the suit land partitioned. Alternatively, in case of raising construction by defendants over suit land, mandatory injunction, directing defendants to restore the suit land into its original condition by demolishing such construction, was also sought for.

2. Suit was dismissed by the trial Court. However, in appeal, learned District Judge decreed the suit for perpetual prohibitory injunction in favour of plaintiff restraining defendants personally or through their family members, assignees, agents and servants from raising construction or changing nature of suit land in any manner till its partition in accordance with law.

3. In present appeal, defendants have assailed judgment and decree passed by learned District Judge in favour of plaintiff which has been admitted on following substantial question of law:-

1. Whether respondents/plaintiffs having themselves admitted that they have raised construction of their house over suit land, therefore, they are estopped by their own act and conduct to claim decree of injunction against present appellants?

4. I have heard learned counsel for the parties and have also gone through the record.

5. As per plaint, parties have constructed houses over some portion of suit land and rest of land is vacant, which is a very valuable piece of land for extension of Abadi and defendants, being strong headed person, are bent upon covering best portion of the suit land forcibly and have started digging the suit land and collecting construction material for raising construction over suit land forcibly without having any right to do so. It is also pleaded in plaint that in case, defendants succeed in raising forcible construction over suit land, then plaintiff is entitled for relief for mandatory injunction, as prayed for.

6. In written statement, defendants have contested the claim of plaintiff stating therein that possession of parties over suit land is separate on the spot on the basis of arrangement made since the time of their ancestors and they are not doing anything over suit land and plaintiffs’ house consisting of two room is already on said land and it is plaintiff, who himself, is threatening to raise construction of one room over said land and defendants have constructed boundary wall over the suit land about four years back to which no objection was raised at that time. It is further stated that house of defendants is situated in adjoining Khasra numbers and only Sehan (courtyard) of defendants falls over the suit land.

7. In replication, it was stated that suit land is joint between the parties and there is no separate possession of parties on the spot and defendants want to cover best portion of suit land by raising construction over it and house of defendants is also over the suit land.

8. During the pendency of suit, Local Commissioner, appointed under Order 39 Rule 7 of Code of Civil Procedure, after visiting the spot, had submitted his report, along with photographs taken and statements recorded by him on the spot, stating therein that defendants had collected construction material i.e. two heaps of stones and one heap of bazari in front of their house, quantum of which was found about five trucks loads, but no new construction was found on the spot. As per statement recorded by him, wife of defendant No. 1 Piar Chand stated that construction material was collected by them for flooring of their house.

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