Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(HP) 343

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
JYOTSNA REWAL DUA, J.

Tulsi Ram - Appellant
Versus
Daropti Devi & Ors. - Respondents
RSA No.43 of 2016
Decided On : 15-03-2024

Advocates Appeared:
For the Appellant:Mr. Raman Sethi, Advocate.
For the Respondents:Mr. P.S. Chandel, Advocate.

Co-owners can construct on joint property unless clear interference with another co-owner's rights is demonstrated. An injunction is not sustainable if the plaintiff himself has previously constructed on the property.

Headnote:(A) H.P. Revenue Act - Section 123 - Suit for permanent prohibitory injunction - Lower trial court's injunction against defendants for construction was reversed by the appellate court - Courts did not misapprehend pleadings or evidence - Injunction unsustainable when plaintiff himself had built on the joint land. (Paras 2, 5(ii), 5(v))

(B) Co-ownership rights - A co-owner may not seek an injunction against another co-owner unless interference is proven - Construction raised by co-owners permissible within their shares - Plaintiff must substantiate claims of interference with evidence. (Paras 5(i), 5(iv), 5(v))

Facts of the case:
The plaintiff and defendants were co-owners of the joint land, with ongoing partition proceedings. Construction initiations by defendants prompted the plaintiff to seek an injunction, alleging potential overreach of boundaries pending resolution of partition. Key documents were reviewed regarding ownership and previous agreements.

Findings of Court:
Courts found the defendants' construction was within their rights as co-owners. The evidence did not support claims of unauthorized occupancy or interference with the plaintiff’s specific shares. The original injunction was hence deemed inappropriate.

Issues: The court addressed whether the findings of the lower courts were erroneous or misrepresented, and if co-owners could change the land’s purpose during partition proceedings.

Ratio Decidendi: The court indicated that co-owners working within their allotted shares may raise constructions and that no injunction could be granted unless clear evidence of constructive ouster was demonstrated. The plaintiff failed to establish such claims.

Result: Appeal dismissed.

Table of Content
1. joint ownership and partition proceedings. (Para 3)
2. allegations of construction interference. (Para 4)
3. court's analysis on possession and construction rights. (Para 5)

JUDGMENT :

Jyotsn a Rewal Dua, J.

Suit for permanent prohibitory injunction and in the alternative for joint possession instituted by the appellant, was allowed by the learned trial Court by passing a decree of permanent prohibitory injunction against the respondents. The decree was reversed by the learned First Appellate Court, resulting in dismissing of the suit. Aggrieved, the plaintiff has come up in the instant Regular Second Appeal.

2. This appeal was admitted on 14.03.2016 on the following substantial questions of law:-

1. Whether on account of mis-appreciation of the pleadings and law and also misreading of the oral as well as documentary evidence available on record, the findings recoded by Courts below are erroneous and, as such, the judgment and decree impugned in tis appeal being perverse and vitiated is not legally sustainable?

2. Whether a joint land which has been divided/partitioned for particular purpose i.e. cultivation can be diverted to an inconsistent user by a co-sharer/co-owner more particularly during the pendency of partition proceedings qua the joint land before learned AC 1st Grade?

The above substantial questions of law are inter connected and are being adjudicated hereinafter.

3. Facts leading to filing of this appeal.

3(i) The appellant filed civil suit on 24.03.2012 with the pleadings that:

3(i)(a) He alongwith defendants/respondents No.1,3 and 4 is recorded as joint owner in possession of the suit land comprised in Khata No.36/36, Khatauni No.39/39,Khasra Nos. 80, 82, 84, 87 and 89, Kita 5, measuring 36-05 sq mtrs. situated in Village Gatwar, Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P. Plaintiff’s share in the suit land was 9.15 bighas.

3(i)(b) Partition proceedings of the suit land were pending before the revenue authorities. Mode of partition had already been prepared on 14.12.1993 (Ex.P-2). An interim order dated 21.01.2000 had been passed by AC 1st Grade, Ghumarwin qua the suit land.

3(i)(c) On 22.03.2012, the defendants had collected wooden material over the suit land for constructing a temporary shed. This was done with an intent to occupy the most v aluable portion of the suit land. Defendants No.3 and 4 had also started constructing a water storage tank and danga over the suit land in order to occupy the land in excess of their shares.

3(i)(d) The defendants did not pay heed to plaintiff’s requests for not raising construction over the suit land till the same was partitioned. Hence, the suit was instituted for grant of decree of permanent prohibitory injunction and in the alternative for joint possession.

3(ii) Defendants No.1, 2 and 4 contested the suit by filing a combined written statement. They denied having caused any interference in the plaintiff’s share over the suit land. The other allegations levelled in the plaint were also denied. The defendants also pleaded that the plaintiff had also raised construction of his house, cow-shed, latrine and bath room over his share in the suit land. After completing his entire construction, plaintiff malafidely wanted to restrain the defendants from raising construction over their portion of the suit land.

3(iii). The plaintiff in his replication reiterated his earlier assert ions and further pleaded that he had constructed his house, cow-shed etc. over the suit land during the year 1977; The defendants had also raised construction of their houses over the suit land; But the defendants wanted to occupy the suit land in excess of their shares.

3(iv). Plaintiff appeared in the witness box as PW-1. Copy of jamabandi for the year 2008-09 was tendered as Ex. P-1, mode of partition dated 14.12.1993 as Ex.P-2 and copy of order dated 21.01.2000 passed by AC 1st Grade Ghumarwin as Ex.P-3. During his cross-examination, plaintiff stated that defendants were trying