Point of Law: Section 36 of Specific Relief Act vests Court with power to grant injunction at its discretion.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, the petitioner has challenged order dated 26.04.2022 passed by the learned Additional District Judge (CBI Court) Shimla, in Civil Misc. Appeal No.3-R/14 of 2021 whereby the order dated 21.10.2021 passed by learned Civil Judge, Court No.2, Rohru, in Civil Misc. Application 99-6 of 2021 (in Civil Suit No. 191 of 2021) has been affirmed.

2. Parties hereafter shall be referred by the same status which they hold before the learned trial Court. Petitioner is the defendant and respondent is the plaintiff before the learned trial Court.

3. Plaintiff has filed Civil Suit No. 191 of 2021 before the learned trial Court seeking relief of permanent prohibitory injunction against the defendant to the effect that he be restrained from raising any type of construction or changing the nature of the land bearing Khata Khatauni No. 6/18, Khasra Nos. 1429 and 1430, measuring 00-20-79 hectare situated in revenue Village Chirgaon, Tehsil Chirgaon, District Himachal H.P. (hereinafter referred to as the “suit land”), till the partition of the suit land was effected in accordance with law.

4. The plaintiff has filed the above noted suit on the premise that she was one of the co-owners of the suit land and had 1/3rd share therein along with her daughters. As per plaintiff, the suit land was joint with other co-owners including the defendant. It is further averred by the plaintiff that defendant had already raised construction of a building on five biswas of land out of the suit land and further he had sold four biswas therefrom in favour of Shri Shishi Ram and his wife Smt. Sushma Devi. Accordingly to plaintiff, defendant was trying to grab more land than his share in the suit land. Plaintiff also claimed her possession over the suit land. Thus, the plaintiff sought decree of permanent prohibitory injunction against the defendant by alleging that defendant had no right to raise further construction on the suit land till partition of the same in accordance with law.

5. Defendant has contested the suit of the plaintiff and has filed written statement. He has claimed exclusive possession of entire land by alleging that the same had fallen to his share in a private partition between the parties, that had taken place in the year 1986. He has further alleged that in the private partition, the late husband of plaintiff was allotted land in Khewat No.5, Khatauni No. 16 in which he had raised one house and now further the plaintiff was raising construction of another house thereon. Defendant further submitted that he was raising construction after demolishing the old structure which was in his possession throughout. Defendant has specifically denied that he was trying to occupy more land than his share. He specifically pleaded that his two sisters namely Lobha Devi and Pushpa Devi had relinquished their entire share in favour of the defendant and his brother Meshar Singh.

6. Alongwith the suit, the plaintiff also filed an application under Order 39, Rules 1 and 2 of the CPC read with Section 151 of the CPC seeking interim injunction restraining defendant from raising any type of construction on the suit land. Defendant contested the application. Learned trial Court allowed the application by holding that the suit land is joint and till its partition defendant had no right to usurp any specific portion thereof. Learned trial Court further held the right of plaintiff to claim interim injunction on the ground that she is co-owner and even if out of possession can seek injunction to prevent the act which is detrimental to her interest.

7. The defendant preferred an appeal against the order passed by learned trial Court, but again remained unsuccessful. Learned Appellate Court also held that the suit land is joint and that the land sought to be utilized by the defendant was valuable portion of the suit land. Such inference has been drawn by the learned Appellate Court from the fact that the defendant had sold some por