The plaintiff has to establish substantial loss or injury being caused by the construction being undertaken/raised by co-sharer/co-owner, to tilt the balance of convenience in favor of the plaintiff for granting the interim stay.

JUDGMENT

Vivek Singh Thakur, J. - Petitioner herein is plaintiff in the suit filed by him against the defendants-respondents, with prayer for permanent prohibitory injunction, restraining defendant No.1 Dropti from encroaching upon valuable portion and dispossessing the plaintiff, by raising construction of hotel over the suit land comprised in Khasra No.1525, 1526 & 1527, situated in Mohal, Phati and Kothi Jagatsukh, Tehsil Manali, District Kullu, Himachal Pradesh, owned jointly by plaintiff, defendant No.1 and others, till partition of the suit land, with alternative prayer for mandatory injunction, in case defendant No.1 succeeds in raising construction of hotel during pendency of suit, to demolish the construction and putting the suit land in its original position at the cost and expenses of defendant No.1. In addition, prayer has also been made to restrain defendants No.2 and 3 from issuing NOC to defendant No.1 on the basis of illegal Mauka Tatima, submitted by defendant No.1, till partition of the suit land.

2. Basis for filing suit, as averred in the plaint, is that plaintiff and defendant No.1 Dropti are joint owners in possession of the suit land, referred supra, alongwith other coowners/co-sharers and the land has not been lawfully partitioned between the co-sharers/co-owners and defendant No.1, without consent of the plaintiff, has started raising construction of hotel over the valuable portion and front side of the suit land by dispossessing the plaintiff forcibly from the suit land, with help of illegal Mauka Tatima of the spot issued by Revenue Authorities, reflecting defendant No.1 in exclusive possession of the suit land, but contrary to the record.

3. Plaintiff, alongwith suit, had also filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, seeking temporary injunction, restraining defendant No.1 from raising any sort of unlawful construction of hotel on the suit land and from occupying more valuable portion and front side thereof, by dispossessing the plaintiff from his share in the suit land and also to restrain defendants No.2 & 3 from issuing NOC on the basis of illegal Mauka Tatima, till final disposal of the suit.

4. Defence of defendant No.1, in nutshell, is that plaintiff and defendant No.1 alongwith other co-sharers are not reflected as co-sharers only in Khasra No.1525, 1526 & 1527 but also in Khasra Nos.1499, 1500, 1501, 1504, 1505 and 1511, and land comprised in all these khasra numbers, divided in separate chunks of land, is in exclusive and settled possession of each co-sharer/family of co-sharers as per family arrangement/partition amongst all co-sharers effected long back and defendant No.1 is in exclusive and settled possession of the land comprised in Khasra No.1525, 1526 & 1527 and the plaintiff had already raised construction of double storeyed lintel-roofed building many years back and a double storeyed tin-roofed cowshed on the land comprised in aforementioned khasra numbers, other than Khasra No.1525, 1526 & 1527, and not only plaintiff but other co-sharers, namely Rishi Kumar and Tikki Devi, have also constructed single storeyed lintel-roofed house, which is also under construction on the alleged joint land and further that late father of defendant No.1 Bhola Ram was also having old house on the suit land comprised in Khasra No.1525 and there is an orchard developed by defendant No.1 and her predecessor-ininterest on the suit land comprised in Khasra No.1525, 1526 & 1527 and defendant No.1 had entered into agreements for sale of the crop, vide written agreement for the years 2009 to 2013 with one contractor and in the year 2017 with another contractor, which indicates exclusive possession of defendant No.1 on the suit land.

5. It is also case of defendant No.1 that after demolition of her old house, situated in Khasra No.1525, she had also constructed a single storeyed tin-roofed residential house on the land falling in her share, in May 2018, to the notice and know