Point of Law : Exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner.

ORDER :

Learned trial court dismissed plaintiff’s application filed under Order 39 Rule 1 & 2 of the Code of Civil Procedure vide order dated 25.11.2021. This order was not interfered with by the First Appellate Court in its judgment dated 31.12.2021. Aggrieved, plaintiff has invoked the jurisdiction under Article 227 of the constitution of India by means of present petition.

2. Facts in brief:-

2(a) A civil suit for permanent prohibitory as well as mandatory injunction was instituted by the petitioner/plaintiff against the respondent/defendant. The civil suit was in respect of land comprised in Khata No.6 min Khtauni No.6 min Khasra No.60 measuring 5 Kanals 04 Marlas, situated in Mohal Bassi P.O. Bhoranj, Tehsil Bhoranj, District Hamirpur H.P. By relying upon the jamabandi for the year 2007-08, the petitioner/plaintiff pleaded that he was co-owner in possession over the suit land. The land was not partitioned. That the respondent was one of the co-owners and had started to collect construction material intending to raise construction over the best portion of the suit land by grabbing more land than his share. That the respondent was threatening to dispossess the petitioner from the suit land forcibly and illegally. He had also started to block the light and air of petitioner’s house which existed over the suit land since 2006-2007. That the respondent was threatening to change the nature of the suit land without getting the same partitioned. Alongwith the civil suit, an application under Order 39 Rule 1 & 2 of CPC was moved by the petitioner, seeking to restrain the respondent from digging the suit land, collecting construction material, raising construction, dispossessing the applicant/plaintiff/petitioner from the suit land forcibly, blocking the light and air of the applicant’s/plaintiff’s house existing over the suit land.

2(b) The respondent opposed the application. His case was that parties were in settled separate possession of the suit land under a family arrangement. Pursuant to this family arrangement, petitioner as well as petitioner’s brother Kartar Chand had already raised their respective construction over the land in question. Respondent also submitted that he had carried out levelling work on the land in the year 2018 and had already raised the construction upto second floor by 19.06.2019. Petitioner had never objected to raising of construction by the respondent. Respondent in his reply also raised an objection that the petitioner had not even spelled out the basis for his claiming right of light and air. Respondent stated that there was no hindrance of light and air to the petitioner. He also denied covering area in excess to his share over the suit land.

2(c) After considering the pleadings and on hearing learned counsel for the parties, learned trial court vide order dated 25.11.2021 dismissed the application. The appeal filed by the plaintiff against this order was also dismissed by the learned First Appellate Court on 30.12.2021. Both the learned courts below while dismissing the application held that well settled principles for grant of temporary injunction were not met with in the instant case. The plaintiff failed to make out a prima facie case in his favour. Balance of convenience was also not in his favour. The plaintiff had also concealed material facts about his having raised residential house over the suit land. It was, therefore, held that the plaintiff could not seek temporary injunction against the defendant for restraining him from raising construction over the joint land.

3. Submissions

3(a) Learned senior counsel for the petitioner/plaintiff argued that both the learned courts below did not appreciate the case of the petitioner/plaintiff in proper perspective. It was wrongly concluded by the learned Courts below that the petitioner/plaintiff had concealed the material facts about his having raised house over the suit land, whereas the fact was that the petitioner/plaintiff had himself pleaded that