Point of Law: Principle of equity, which is cardinal while deciding the grant of equitable relief of injunction, has duly been considered.

ORDER :

By way of instant petition, order dated 29.12.2021, passed by learned Additional District Judge, Sundernagar, in Civil Misc. Appeal no. 32/2021 has been assailed.

2. The Civil Misc. Appeal decided by learned Additional District Judge, Sundernagar, had arisen from an order dated 25.09.2021, passed by learned Civil Judge, Court No.-II, Sundernagar, in CMA No. 270/2021 in Civil Suit No. 118/2021.

3. The parties hereto shall be referred by the same status as they held before the learned trial Court. Petitioner herein is the plaintiff and respondents herein are the defendants.

4. Plaintiff has filed a suit against the defendants seeking following reliefs:-

“1. Pass a decree for permanent prohibitory injunction by restraining the defendants from digging the suit land, causing any sort of interference or change the nature of suit land by constructing a permanent structure in the shape of house over the suit land describe in para No.1 of the plaint in any manner may kindly be passed in favour of plaintiff and against the defendants.

2. In case the defendants succeed in raising construction or changing the nature of the suit land in any manner during the pendency of the suit then a decree for mandatory injunction by directing the defendants to restore the suit land in its original position be passed in favour of the plaintiff and against the defendants.”

The suit was filed on the premise that the suit land detailed in para-1 of the plaint comprised in Khewat No.22 Min, Khatauni No.28 Min, Khasra Nos. 184 and 186 was jointly owned and possessed by the parties to the suit and other cosharers. The entire suit land was joint and partition had not been effected. The defendants had started making preparations for raising construction on a part of khasra No.186. It was also alleged that the defendants already had two houses in khasra No.186 and the new construction if allowed to be carried out, would be their third house. The conduct of the defendants in raising new construction was objected to on the ground that the same would adversely affect the rights of the plaintiffs.

5. Along with the suit, Civil Misc. Application for interim injunction restraining the defendants from raising construction on the suit land, till the pendency of the suit, was also filed.

6. Defendants are contesting the suit of the plaintiff. It is submitted on behalf of the defendants that the parties have much more joint land than the land detailed in para-1 of the plaint. The entire land in Khewat No.22 Min is stated to be about 84 bighas. The defendants have claimed their 1/8 share therein to the extent of 10-10-19 bighas. It is further submitted on behalf of the defendants that construction is being raised by them on less than two biswas of land. Plaintiff and his sons are stated to have constructed their separate houses on the suit land.

7. Learned trial Court allowed the application of plaintiff and directed the parties to maintain status quo qua nature and possession of land bearing Khewat No.22 Min, Khatauni No.28 Min, Khasra Nos. 184 and 186, situated in Mohal Bahi/22, Tehsil Nihri, District Mandi, H.P.

8. In appeal, under Order 43, Rule 1(r) of the Code of Civil Procedure, learned Additional District Judge, Sundernagar, District Mandi, H.P., has set aside the order passed by the learned trial court and the application of the plaintiff for interim injunction has been ordered to be dismissed.

9. I have heard Mr. Hemant Kumar Thakur, learned counsel for the plaintiff and Mr. H.S. Rangra, Advocate, for the defendants, and have also carefully perused the record.

10. The scope of this Court to exercise jurisdiction under Article 227 of the Constitution of India is restrictive and well defined. This Court in exercise of aforesaid jurisdiction will not sit as Court of appeal to reappreciate and reweigh the evidence or facts upon which the determination under challenge is based. The jurisdiction is to be exercised only to set right grave dereliction of duty or flagrant abus