Point of Law: Injunction being a discretionary and equitable relief, courts have to analyse entire available material to assess existence of prima-facie case, irreparable loss and balance of convenience.

JUDGMENT :

SATYEN VAIDYA, J.

1. Both these petitions involve identical set of facts and questions of law, therefore, both the petitions are being decided by a common judgment.

2. CMPMO No. 182 of 2022 has arisen from an order which has its genesis in Civil Suit titled Rajeev vs. Jai Singh, pending before learned Senior Civil Judge, Court No. 1, Rohru and CMPMO No. 540 of 2022 arises from an order having genesis in Civil Suit titled Kishori Lal vs. Jai Singh, pending before learned Civil Judge, Jubbal, Camp at Rohru, District Shimla, H.P.

3. Petitioner herein is defendant in both the suits. Respondents in these petitions are plaintiffs. Both plaintiffs are real brothers.

4. The plaintiffs have filed their respective suits against the defendant on the identical cause of action. Their grievance is that the land comprised in Khata-Khatauni No. 15 Min- 56-Min, Khasra No. 629/480, measuring 00-32-22 hectares in Chak Mandharli, Tehsil Rohru, District Shimla (for short “the suit land”) is joint between the plaintiffs, defendant and other co-sharers. No partition has taken place. The suit land abuts the road and defendant had started raising construction thereon, which according to them was prejudicial to their rights.

5. Along with their respective suits, the plaintiffs also filed applications for interim injunction, restraining defendant from raising any construction on the suit land till final disposal of the suits. The applications for interim injunction filed by both the plaintiffs in their respective suits were dismissed by learned trial Courts. However, in separate appeals preferred by plaintiffs under Order 43 Rule 1 (r) CPC the orders passed by learned trial Courts have been reversed and interim injunction has been granted in favour of the plaintiffs and against the defendant, whereby the defendant has been restrained from raising construction on the suit land.

6. Aggrieved against the orders, passed by the learned Appellate Courts in respective appeals of the plaintiffs, defendant is before this Court by way of the instant petitions.

7. Defendant has assailed the impugned orders on the grounds that the learned Appellate Court has failed to appreciate the fact regarding recording of separate possession of co-sharers in the revenue records since long which prima-facie was proof of family arrangement/settlement/partition, as claimed by defendant. As per defendant, he has 1/6th share in the suit land. Though, the entire suit land was in his exclusive possession, he was raising construction on land, which was much less than his share. It has also been contended on behalf of the defendant that the impugned orders suffer from illegality in as much as the same have been passed without correctly assessing the facts of the case at the touch stone of established legal principles.

8. On the other hand, plaintiffs have supported the impugned orders. They have alleged that the suit land has special value as it abuts the road and in case the defendant is allowed to raise construction thereon, the rights of plaintiffs shall be prejudiced at the time of partition, which had already been sought by plaintiff Kishori Lal by filing an application under Section 123 of H.P. Land Revenue Act before the competent revenue court.

9. I have heard the learned counsel for the parties and have also gone through the record carefully.

10. Para-3 of the plaint instituted by plaintiff Rajeev reads as under:

“That the land of joint family/co-owners is situated in Revenue Chak Mandharli and is comprised in Khata No. 15, Khatuani No. 53 to 62 total 45 kittas measuring 10-74-86 hectares and Khata No. 14 Khatauni No. 50 to 52 total 4 kittas measuring 00-42- 66 hectares and Khata No. 17 Khatauni No. 64 total 2 kitas measuring 00-02-80 hectares and Khata No. 16 Khatauni No. 63 1 kita measuring 00-01-86 hectares.”

11. Copy of jamabandi of the entire land comprised in Khata No. 15 is available in the record of CMPMO No. 540 of 2022. The total area in this khata is 10-74-86 hectares