The failure to object to construction on joint land weakened the case for injunction, and the remedy for the plaintiffs was to seek partition of the joint land.

JUDGMENT :

Ajay Mohan Goel, J.

1. By way of this petition filed under Article 227 of the Constitution of India, the petitioners/plaintiffs have challenged the order passed by the Court of learned Civil Judge, Court No. 2, Sundernagar, District Mandi, in CMA No. 165-VI/2020, filed in Civil Suit No. 86-1 of 2020, vide which, an application under Order 39, Rules 1 and 2 of the Civil Procedure Code filed by the present petitioners stood dismissed by the said Court as well as the judgment dated 23.02.2021, passed by the Court of learned Additional District Judge, Sundernagar, District Mandi, in Civil Miscellaneous Appeal No. 38 of 2020, titled as Mohan and others vs. Shri Man Singh and others, vide which, the order passed by learned Trial Court stood affirmed by the learned Appellate Court by dismissing the appeal preferred by the present petitioners against the order of the learned Trial Court.

2. Brief facts necessary for the adjudication of the present petition are that the petitioners herein, have filed a suit for permanent prohibitory injunction against the respondents with regard to the suit land on the ground that the entire land is joint between the parties and other co-sharers and no co-sharer has a right to construct upon the same. Yet, respondents started raising construction on best portion of the land adjoining to the Gawajal to Kandyah road, which led to filing of the suit as also the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, wherein a prayer was made that during the pendency of the civil suit, the respondents be injuncted from carrying out any construction over the best portion of the suit land till the same was partitioned.

3. This application has been dismissed by the learned Trial Court vide order dated 17.10.2020 by holding that it was a matter of record that other co-sharers had raised construction upon the suit land which was joint and which construction was never objected to by the plaintiffs. Learned Trial Court also held that the fact that no objection, at any stage, was raised by the plaintiffs at the time when other co-sharers were raising the construction also strengthened the pleadings of the defendants with regard to their family arrangement. Learned Court also held that there was enough suit land available and it was not the case of the plaintiffs that if the respondents are permitted to carry out the construction, then no land would be available to other co-shares. On these bases, learned Trial Court held that the plaintiffs had failed to prove any irreparable loss or injury in the event of denial of the interim relief to them.

4. These findings stand upheld by the learned Appellate Court which observed that there was no prima facie case in favour of the plaintiffs as no objection was raised by them when other co-shares carried out the construction of their houses and shops upon the suit land, who according to the defendants, were close relatives of the plaintiffs. Learned Appellate Court also held that learned Trial Court had rightly highlighted the conduct of the applicants/plaintiffs which was sufficient to decline the relief of temporary injunction. It also held that even otherwise, the remedy available to the plaintiffs was to seek partition of the joint land and not the relief of injunction. On these bases, learned Appellate Court dismissed the appeal filed by the plaintiffs/ appellants.

5. I have heard learned Counsel for the parties and also gone through the orders passed by the learned Courts below.

6. Herein both the learned Courts below have returned the findings to the effect that the plaintiffs had not objected to the construction of houses and shops on the joint land by other co-shares, namely, S/Sh. Nand Lal, Pyare Lal and Ashok Kumar.

7. During the course of arguments, learned Counsel for the petitioners could not seriously dispute the findings returned by learned Courts below, except by making a submission that the construction which was raised by other co-shar