Point of Law : Grant of temporary injunction is not to be claimed by a party as a matter of right nor can be denied by a court arbitrarily rather, discretion in this regard is to be exercised by a court on the basis of principles, as have been enunciated in aforesaid judgment.

JUDGMENT :

SANDEEP SHARMA, J.

1. Instant petition filed under Article 227 of the Constitution of India lays challenge to judgment dated 30.11.2022 passed by learned Additional District Judge-I, Kangra at Dharamshala, District Kangra, Himachal Pradesh in Civil Misc. Appeal No. 03-N/XIV/2021, setting aside the order dated 13.7.2021 passed by learned Civil Judge, Nurpur in CMA No. 373/2019 in Civil Suit No. 200/2019 titled Rattan Singh vs. Balwant Singh, whereby learned trial Court, while allowing an application filed under Order XXXIX, rule 1 and 2 CPC by appellant/plaintiff (hereinafter ‘plaintiff’) restrained the respondents/defendants (hereinafter ‘defendants’) from raising any kind of construction and changing the nature of the suit land, as described in the plaint.

2. Precisely, the facts of the case, as emerge from the record, are that the plaintiff filed a civil suit against the defendants (hereinafter, ‘defendant’) (Annexure P-1), for permanent injunction restraining the defendants, their family members, relatives, agents, servants, attorneys, assignees, masons, labourers etc. permanently from raising any kind of construction, changing the nature of the land or doing any act, which is detrimental to the plaintiff in the land comprised in Khata No. 14, Khatauni No. 19, Khasra Nos. 2319/1601, 1602, 1888, 1889, 2006, 2009, 2013, 2014, 2033, 2084, 2206, 2209 plots 12 measuring 01-56-75 HM situate in Mohal Rehan Khas and Mouza Rehan, Tehsil Fatehpur, District Kangra, Himachal Pradesh (hereinafter ‘suit land’). It is averred in the plaint that the suit land is in joint ownership and possession of plaintiff and defendants and the same has not been partitioned as yet. The partition proceedings are stated to be pending before Sub Divisional Magistrate, Fatehpur in appeal and next date was 22.11.2019. It is averred in the plaint that the defendants threatened to raise forcible construction over the suit land and did not desist from raising forcible construction on suit land. Alongwith plaint, an application under Order XXXIX, rules 1 and 2 CPC was filed by the plaintiff for restraining the defendants from raising construction, changing nature of suit land or doing any act, detrimental to the plaintiff.

3. The suit was contested by the defendants Nos. 3 and 4 by filing written statement to the plaint and reply to the application. It is averred in the written statement that suit land was not joint as on 20.11.2019, as the suit land stood partitioned by Assistant Collector First Grade, Nurpur. On establishment of the office of Sub Divisional Magistrate Fatehpur, the plaintiff filed an appeal, which was decided on 5.5.2017 and on the basis of instrument of partition, possession was delivered to the parties. It is further averred that the mutation No. 1394 dated 20.6.2019 was entered in the revenue record. It is averred that the defendants were allotted Khasra Nos. 2319/1601/5 and 1602/3. It is averred that application for demarcation was filed by one Rashpal and plaintiff was duly informed about the demarcation report, but he refused to sign the same. In nutshell, as per defendants, the suit land was duly partitioned.

4. Plaintiff filed replication to the written statement thereby stating that the plaintiff filed an appeal against order dated 22.10.2019 passed by Assistant Collector First Grade Fatehpur and appeal was accepted by the Collector Fatehpur and matter was remanded back to the Assistant Collector First Grade for decision afresh. It is averred that the partition was not done in accordance with Rules.

5. Learned trial Court vide order dated 13.7.2021, allowed the application filed by the plaintiff and restrained the defendants from raising any construction, changing nature of suit land or doing any acts detrimental to the rights of the plaintiff. Defendants Nos. 2 to 4 filed an appeal under Order XLIII, rule 1(r) CPC against the order dated 13.7.2021 before learned Additional District Judge-I, Kangra at Dharamshala, who vide judgme