The absence of formal partitioning of the property, the relevance of a prima facie case, balance of convenience, and the harmful consequences of allowing construction during the pendency of the suit were central legal points established in the judgment.

JUDGMENT :

Vivek Singh Thakur, J.

Invoking provisions of Article 227 of the Constitution of India, defendant-petitioner (hereinafter ‘defendant’) has approached this Court against impugned judgment dated 31.8.2020, passed by District Judge, Solan, District Solan, Himachal Pradesh, in Civil Misc. Appeal No.11-S/14 of 2020, titled as Narender Pal v. Sohan Lal, whereby the Appellate Court has affirmed the order dated 29.6.2020, passed by Civil Judge, Court No.2, Solan, Himachal Pradesh, in CMA no.117-6 of 2020, titled as Sohan Lal v. Narender Pal, directing the parties to maintain status quo qua nature possession and character of the suit land, comprised in Khata/Khatauni No.132min/189min Khasra No.243, measuring 4 biswas, situate in Mauza Anech Hadbast No.69/819, Tehsil and District Solan, Himachal Pradesh.

2. I have heard learned counsel for the parties and have also gone through the material placed before me.

3. Admitted facts in present case are that nature of the suit land, described above, is Abadi Deh, which is owned and possessed by the plaintiff-respondent (hereinafter ‘plaintiff’), defendant, their two other brothers and a sister. Families of plaintiff, defendant and two other brothers are residing in a building constructed on the suit land. All four brothers are occupying separate portions of the building. Defendant is in occupation of constructed portion in the ground floor, lintel whereof is vacant. Portion occupied by the plaintiff is on the first and second floor and lintel of the portion occupied by the defendant is in front of the constructed area of first floor in occupation of plaintiff.

4. According to the plaintiff, the other brothers, including defendant, are having sufficient open portion as courtyard for their use in front of their respective portions of the building occupied by them, whereas plaintiff is having courtyard in the shape of lintel, which is of the ground floor occupied by the defendant. According to plaintiff, defendant has no right to raise construction of first floor upon the lintel, because in lieu of courtyard being used by other three brothers, plaintiff has been given lintel for using it as a courtyard, and that in case construction is permitted to be raised by defendant on the lintel, it would deprive the plaintiff not only of the courtyard but also light, air, etc. to his adjacent constructed portion in his possession.

5. For grant or refusal of injunction, the Court has to see that in whose favour prima facie case and balance of convenience are, and which party would suffer irreparable loss in case of allowing or disallowing the prayer of temporary injunction. Factum of bonafide contest of the trial, involving serious question making out a case for trial, is also a relevant consideration for allowing or denying the temporary injunction.

6. In present case, admittedly, property though possessed by brothers separately, but has been recorded in joint ownership and possession and there is no family settlement deed or any other document either with the parties or registered in the revenue record, indicating the specific right of the parties on the specific portion of the suit land and building in reference.

7. The defendant is claiming that he, like other three brothers, is in exclusive possession of a portion in ground floor and, therefore, he has a right to raise construction on the lintel at the first floor, whereas plaintiff is claiming right to use the said lintel as a courtyard and, further, according to plaintiff he is joint owner in the entire property, however, as per domestic arrangement, he has been provided the courtyard on the first floor. Plaintiff is claiming possession over the lintel, whereas the defendant is claiming that he is entitled to raise construction thereon, with the plea that the plaintiff has already raised construction over first floor as per his requirement in the year 1995, but now he is not allowing the defendant to raise construction as per requirement of defenda