A plaintiff must establish a prima-facie case and demonstrate exclusivity to obtain an interim injunction regarding joint property.

JUDGMENT :

(Satyen Vaidya, J.)

Heard.

2. The petitioner is aggrieved against the order dated 2.3.2024, passed by the learned District Judge, Hamirpur in CMA No. 44 of 2023, whereby the order dated 21.8.2023, passed by the learned Civil Judge, Court No.2, Hamirpur in CMA No. 309 of 2023 in Civil Suit No. 115 of 2023, has been affirmed.

3. Petitioner/plaintiff has filed Civil Suit No. 115 of 2023 on the files of learned Civil Judge, Court No.2, Hamirpur. She has prayed for a decree of permanent prohibitory injunction against the defendant to the effect that the defendant and his family members, agents, servants or assignees be restrained from digging the suit land for raising construction in any manner and to change the nature of the suit land, covering best portion of the suit land more than his due share.

4. The suit land has been described as land comprised in Khata No. 148, Khatauni No. 156, Khasra No. 177-178, Kite-2, total measuring 00-40-18 hectares, situated in Mohal Lahar, Tehsil and District Hamirpur.

5. Along with the plaint, the plaintiff also filed an application under Order 39 Rules 1 and 2 of the CPC, seeking interim injunction against the defendant in the aforesaid terms.

6. The defendant has contested the claim of the plaintiff by filing written statement, as also reply to the application for interim injunction.

7. Learned trial Court vide order dated 21.8.2023 declined the prayer of plaintiff for interim injunction. The appeal filed by the plaintiff under Order 43 Rule 1 (r) of the Code against the order dated 21.8.2023, passed by the learned trial Court has also been dismissed by the learned District Judge, Hamirpur vide impugned order dated 2.3.2024.

8. Both the Courts below have refused to grant the prayer for interim injunction, as made by the plaintiff, by holding that the plaintiff has not been able to establish prima-facie case. It has been noticed by the learned Courts below that the plaintiff had not pleaded complete facts in the plaint. He had sent a communication dated 10.7.2023 to the Town & Country Planning Authority that the defendant had already raised construction over the suit land. From the conduct of the plaintiff, learned Courts below have found that she is not entitled for equitable relief.

9. Mr. Suneet Goel, learned Senior Counsel for the petitioner has assailed the aforesaid findings on the ground that such findings do not confirm the pleadings on record. As per him, the plaintiff had made all necessary disclosures in the plaint and was not guilty of any conduct, so as to deny her the equitable relief. He submits that the defendant had started raising construction without completion of the partition proceedings and in such view of the matter, the plaintiff was entitled to interim relief as prayed in the application under Order 39 Rules 1 and 2.

10. On the other hand, learned counsel for the defendant has supported the impugned order.

11. A copy of the plaint placed on record reveals that it was verified on 12.7.2023. In para-4 of the plaint, it is averred that the defendant had started digging the suit land for raising construction and had also started collecting construction materials over the suit land, covering more than his due share.

12. Learned Courts below have prima-facie found that on the date of filing of the suit, the defendant had already raised some construction. This inference was drawn on the basis of a communication dated 10.7.2023, addressed by the plaintiff to the Town & Country Planning Authorities, complaining that the defendant had already raised some construction without permission and sanction under the Town & Country Planning Act.

13. On 11.3.2025, after hearing this matter for some time, this Court had directed the plaintiff to produce on record communication dated 10.7.2023. Today, though a copy of the required communication has not been produced but a copy of communication dated 11.7.2023 written by the plaintiff to the SDO (C), Hamirpur has been placed on record. It is cont