Point of Law: Co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in common property absolutely and simply because he is a co-owner unless any act of person in possession of property amounts to ouster prejudicial or adverse to interest of co-owner out of possession.

JUDGMENT :

By way of instant Regular Second Appeal filed under S.100 CPC, challenge has been laid to judgment and decree dated 30.7.2019 passed by learned Additional District Judge-1, Mandi, District Mandi, Himachal Pradesh in Civil Appeal No. 61/2018, reversing the judgment and decree dated 28.9.2018 passed by learned Civil Judge, Court No.2, Sundernagar, District Mandi, Himachal Pradesh in Civil Suit No. 49/2012, whereby, learned trial Court, while decreeing the suit of the appellant/plaintiff (hereinafter, ‘plaintiff’) with respect to land comprised in Khewat No. 99, Khatauni No. 107, Khasra Mitas 19, total land measuring 18-10-11 Bigha, situate in Mohal Dharanda/1, Tehsil Sundernagar, District Mandi, Himachal Pradesh (hereinafter, ‘suit land’), restrained the respondent/defendant (hereinafter, ‘defendant’) from raising construction over the suit land, in any manner, till the same is partitioned in metes and bounds.

2. Precisely, the facts of the case, as emerge from the record, are that plaintiff filed a suit for permanent prohibitory and mandatory injunctions, restraining defendant from raising any construction on suit land as described above, till its partition by meats and bounds. Plaintiff claimed before learned court below that the suit land is joint inter se them and till date, same has not been partitioned. It is averred in the plaint that Khasra No. 1398 was best portion by the side of Gharanda-Mera-Masit road and best for commercial purposes, but defendant has started raising construction on the same despite the fact that entire land including Khasra No.1398 is still joint inter se parties. Plaintiff averred in the plaint that since he requested defendant not to raise construction, but yet he continued with the construction work and refused to accede to his request, as such, defendant is liable to be restrained by way of decree of permanent prohibitory and mandatory injunctions.

3. Claim set up in plaint came to be resisted on the grounds of maintainability, locus standi, estoppel and mis-joinder and non-joinder of parties. Besides above, defendant in his written statement though admitted that the plaintiff and defendant are co-sharers in suit land and it stands recorded jointly in revenue record, but specifically stated /claimed that parties are in separate possession on the spot as per their shares. It is pleaded that the house was constructed on the spot, which is 60 feet from the road. Apart from above, defendant also pleaded that when work was started, plaintiff not only cooperated with him but encouraged him for construction and now when defendant has already spent huge amount, construction is being opposed on the ground that the land is joint inter se parties. He further submitted that one of fields is still lying vacant on road side and in possession of plaintiff. Plaintiff filed replication to written statement, wherein he claimed that the defendant has already built three houses near road and this is fourth one, which is being constructed without any need.

4. On the basis of pleadings of the parties and evidence led on record by respective parties, learned trial Court framed following issues.

1) Whether the defendant is raising construction on the entire front portion of the suit land and thereby occupying valuable portion of it, as alleged? OPP

2) Whether the plaintiff is entitled for relief of permanent prohibitory injunction? OPP

3) Whether suit of the plaintiff is not maintainable? OPD

4) Whether the plaintiff is not maintainable? OPD

5) Whether the plaintiff estopped from filing the present suit by his acts and conducts? OPD

5. Subsequently, vide judgment and decree dated 28.9.2018, learned trial Court decreed the suit and restrained the defendant from raising construction over suit land in any manner till partition of suit land. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court, defendant filed an appeal in the court of learned Additional District Judge-I, Mandi