Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 160

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIVEK SINGH THAKUR, J.
Dharam Singh & Others - Appellants
Versus
Lekh Ram - Respondent
RSA No. 20 of 2019
Decided On : 10-04-2025

Advocates Appeared:
For the Appellants : Mr. G.R. Palsra.
For the Respondent: Mr. Devender K. Sharma.

Co-owners cannot raise construction on joint property without consent from other co-owners, and must substantiate claims of irreparable loss to obtain an injunction.

Headnote:
(A) Civil Procedure Code, 1908 - Sections 100 and 101 - Permanent injunction - Dispute over joint ownership and possession of land - Plaintiff alleged unauthorized construction by defendants on joint land - Trial Court dismissed suit, but Appellate Court granted injunction - Appellate Court misread evidence and failed to recognize separate possession of parties as per revenue records - Plaintiff's claims of irreparable loss not substantiated - Judgment of Appellate Court set aside. (Paras 1, 4, 32, 42)

(B) Co-ownership - Rights of co-owners - A co-owner cannot raise construction on joint land without consent of other co-owners unless partitioned - Mere occupation does not amount to ouster unless exclusive and hostile - Plaintiff failed to prove adverse effect on rights due to defendants' construction. (Paras 20, 26, 27)

Facts of the case:
The plaintiff filed a suit for injunction against defendants claiming unauthorized construction on joint land. The Trial Court dismissed the suit, but the Appellate Court granted an injunction, which was contested by the defendants. (Paras 1, 4)

Findings of Court:
The Appellate Court's judgment was based on misinterpretation of evidence and failed to acknowledge the separate possession of the parties as recorded in the Jamabandi. (Paras 32, 42)

Issues: Whether the Appellate Court misread evidence and whether the plaintiff's suit was vague and without substantiation. (Paras 6, 8)

Ratio Decidendi: The court emphasized that co-owners cannot alter the nature of joint property without consent and that the plaintiff must prove irreparable loss caused by the defendants' actions. (Paras 20, 27)

Result: Appeal allowed; judgment of the Appellate Court set aside and suit dismissed.

JUDGMENT :

Vivek Singh Thakur, J.

Appellants are defendants in present matter, whereas, respondent is plaintiff, in Civil Suit No.70 of 2015, titled as Lekh Ram vs. Dharam Singh & others, in the Court of Civil Judge (Junior Division), Court No.4, Mandi, H.P., filed for permanent prohibitory and mandatory injunction against the defendants on the ground that the suit land is in joint ownership and possession of the plaintiff, defendants and other co-sharers and property has not been partitioned, but defendants without getting the land partitioned have started raising construction on the valuable portion of the suit land on 15.02.2015 by occupying valuable portion forcibly for their personal use without consent and permission of the plaintiff and other co-sharers and construction raised as such shall cause irreparable loss and injury to the plaintiff and other co-sharers which cannot be compensated otherwise.

2. Defendants contested the suit by filing written statement stating therein that suit land, though, is in joint ownership and possession of the parties, but parties are residing separately in their houses and cultivating and possessing the land separately from each other by raising construction of their houses upon the land for the last so many years and are enjoying the usufruct of the land of their share separately. Further that old houses and cowsheds etc. of defendants were existing upon the land comprised in Khasra No.126, for the last more than 40 years which was in possession of the defendants. It was also stated that plaintiff himself had raised construction of a house upon the suit land and was also raising construction upon the suit land without seeking partition and, thus, it was inequitable act on his part to file present suit against the defendants. It was also contended that defendants were neither raising construction nor changing nature of the suit land as alleged.

3. Suit was dismissed by the Trial Court vide judgment and decree dated 23.12.2017.

4. Being aggrieved, plaintiff had filed Civil Appeal No.1 of 2018, titled as Lekh Ram vs. Dharam Singh & others, against the judgment and decree dated 23.12.2017, passed by Trial Court. Vide judgment and decree dated 31.10.2018, passed by the District Judge, Mandi, H.P., by setting aside judgment and decree dated 23.12.2017 of the Trial Court, decree was passed in favour of the plaintiff and against the defendants by restraining the defendants from raising any construction over the suit land/property in any manner till the suit land is partitioned through process of law.

5. Defendants have assailed judgment dated 31.10.2018 passed by the District Judge, Mandi, by filing present appeal.

6. Vide order dated 10.01.2019, appeal was admitted on following substantial questions of law:-

“1. Whether the First Appellate Court has misread the oral as well as documentary evidence of the parties especially the statement of PW-2 Anjana Kumari, DW-1 Kushal Singh, document Ext. PW1/C, Jamabandi which has materially prejudiced the case of the appellant?

2. Whether the suit of the respondent/plaintiff is vague, indefinite and uncertain, as no spot map and demarcation report has been filed by the respondent/plaintiff in order to prove the alleged construction?”

7. I have heard learned counsel for the parties and have gone through the record.

8. It has been contended on behalf of the defendants that impugned judgment and decree is result of misreading of oral as well as documentary evidence led by the parties by referring various judgments in paragraph 14 of the impugned judgment, ratio of which, in fact, is in favour of the defendants and against the plaintiff as the suit of the plaintiff was vague, indefinite, uncertain and without any evidence substantiating the claim of the plaintiff, with respect to raising construction by the defendants, causing irreparable loss and injury to the plaintiff and occupying valuable portion of the land by the defendants forcibly for their personal use.

9. To t