Point of Law: Temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.

ORDER :

Instant petition filed under Article 227 of the Constitution of India, lays challenge to judgment dated 4.5.2022, passed by the learned District Judge Shimla, HP, in CMA No. 11-S/14 of 2022 (CNR No. HPSH100023452022, reversing the order dated 12.4.2022, passed by the learned Civil Judge-3, Shimla, District Shimla, H.P., in CMA Filing No. 391/2022 (CNR No. HPSH 120003942022; Registration No. 215/2022) in CS No. 30 of 2022, whereby learned trial court dismissed the application filed by the respondent-plaintiff (hereinafter referred to as “the plaintiff”) for grant of temporary injunction, restraining the petitioner-defendant (hereinafter referred to as “the defendant”), from causing interference in any manner by way of raising construction, digging and excavating the suit land.

2. Precisely, the facts of the case as emerge from the record are that plaintiff filed a suit for permanent prohibitory injunction as well as mandatory injunction against the defendant, claiming himself to be owner of the suit land. Plaintiff also prayed for permanent prohibitory injunction restraining the defendant from raising any kind of construction, digging, encroaching upon the suit land bearing khasra No. 565 or any portion thereof and Khata Khatauni No. 57/55 to 60/58, total plots 105 measuring 05-43-67 hectares situate at Mauja Nalag, Tehsil and District Shimla (HP) till the same is partitioned by metes and bounds. Alongwith the aforesaid suit, plaintiff also filed application under Order 39 Rules 1 & 2 CPC, praying therein to grant temporary injunction, restraining the defendant from causing any interference in the suit land till the disposal of the main suit. In the application, it came to be averred by the plaintiff that plaintiff and defendant are co-owner in the suit land and till date, same has not been partitioned by metes and bounds. Plaintiff averred that he has filed application for partition of the suit land before the Assistant Collector, 2nd Grade Dhami, which is pending adjudication. It has been further averred that until and unless, suit land is partitioned by metes and bounds, no co-owner has right to change the nature of suit land either by way of raising construction or by way of excavation or digging up the specific portion of the suit land. Plaintiff alleged in the application that defendant, without seeking any permission from him, started raising construction on the suit land comprising khasra No. 565, which is a valuable portion of the land abutting to the road and in case, he is permitted to go ahead with the construction, irreparable loss would be caused to him, which cannot be compensated in terms of cash or any kind. Besides above, plaintiff prayed that there is prima-facie case in his favour and balance of convenience also lies in his favour.

3. Aforesaid prayer made on behalf of the plaintiff came to be resisted by the defendant, who by way of reply to the application while admitting factum with regard to revenue entries qua the suit land claimed that though land is joint inter-se parties, but parties are in their settled possession as per the family arrangement, which took place between the parties 40 years ago and stands duly recorded in the revenue record. Defendant also claimed that parties are in exclusive possession of the particular khasra number, which fact is duly recorded in the revenue record on the basis of actual possession that too after due verification. Besides above, defendant also submitted that plaintiff is in exclusive possession of khatauni No. 55 old (new khatauni No. 60) Kitas 49 measuring 02-51-07 hectares as per Jamabandi for the year 1997-98 and still so recorded in successive jamabandies for the years 2001-02, 2006-07, 2011-12 and 2016-17 and he is in exclusive possession of the suit land as per the family arrangement comprised in Khatauni No. 57 old (new khatauni No. 62) Kitas 51 measuring 02-83-39 and other remaining land in other khewats are still lying joint. Defendant also averred