Co-owner not entitled to injunction against another's construction on joint land unless proved to amount to ouster or detriment to rights; requires evidence beyond sole testimony, mere jointness insufficient.

Judgment :

Romesh Verma, J.

The present appeal arises out of judgment and decree as passed by the learned District Judge, Mandi, dated 05.03.2024, whereby the appeal filed by the present appellant has been dismissed and the judgment and decree as passed by learned Senior Civil Judge, Court No.1, Mandi, District Mandi, H.P. dated 22.08.2023 has been affirmed.

2. Brief facts of the case are that the plaintiff/appellant filed a suit for permanent prohibitory injunction and mandatory injunction under Sections 38 & 39 of the Specific Relief Act in the Court of learned Senior Civil Judge, Court No.1, Mandi, H.P. on 18.11.2016. It was averred in the plaint that the suit land is joint between the parties, therefore, the defendants/respondents be restrained by way of permanent prohibitory injunction from constructing or changing the nature of the suit land and in the event of any construction during the pendency of suit, mandatory injunction directing the defendants/respondents to demolish the structure and restore the suit land to its original position. The suit was filed with respect to Khewat Khatauni No.153/171, Khasra No.633/1, measuring 5.8.5 bighas, situated in Muhal Chadyara, Hadbast No.346, Patwar Circle Manyana, Tehsil Sadar, District Mandi, H.P. It was averred that the parties are co-sharers as per jamabandi for the year 2012-13 and the land, in question, being joint between the parties and till the time the suit land is not partitioned by metes and bounds, the defendants/respondents should be restrained from interfering or raising any construction on the best and valuable portion of the land. It was averred that the defendants with an intention to grab the best and valuable portion, started raising construction over the suit land and when they were requested not to raise any construction, the defendants/respondents have failed to accede to her request.

3. The suit was contested by the defendants/respondents by taking various objections such as maintainability, non-joinder and mis-joinder of necessary parties, valuation, jurisdiction, court fee etc. On merits, it was averred that the status of the parties is that of co-sharers and admittedly, the land is joint between the parties. However, it was specifically denied that any construction is being raised over the suit land or the nature of suit land is being changed by making any developmental activity.

4. Learned trial Court framed the following issues:

“1. Whether plaintiff and defendants are in joint ownership and possession of the land comprised under Khewat Khatauni No.153/171, Khasra no.633/1, measuring 5-8-5 bighas situated in Muhal Chadyara hadbast No.346 Patwar Circle Manyana, Tehsil Sadar, District Mandi, HP? OPP.

2. Whether the defendants have raised construction over the suit land? OPP.

3. Whether the suit of the plaintiff is maintainable, as alleged?OPD.

4. Whether the plaintiff has no cause of action to file the present suit? OPD.

5. Whether the suit is bad for non joinder and mis joinder of parties, as alleged?OPD.

6. Whether the suit is not correctly valued for he purpose of court fee and jurisdiction, as alleged? OPD.

7. Relief.”

5. The respective parties were directed to adduce evidence in support of their contentions and ultimately, vide judgment and decree dated 22.08.2023, the suit filed by the plaintiff was dismissed.

6. Feeling dissatisfied, the plaintiff/appellant preferred an appeal in the Court of learned District Judge, Mandi, on 01.11.2023. The first appellate Court, vide its judgment dated 05.03.2024, dismissed the appeal pref