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2025 Supreme(HP) 1789
IN THE HIGH Court OF HIMACHAL PRADESH, SHIMLA
AJAY MOHAN GOEL, J.
Bir Singh - Petitioner
Versus
Tirath Raj & Another – Respondents
CMPMO No.389 of 2023
Decided On : 29-12-2025
For the Petitioner:Ms. Madhurika Sekhon, Advocate.
For the Respondents:Mr. Sanjeev Kuthiala, Senior Advocate with Ms. Tamanna Sharma, Advocate.
Co-owner cannot restrain another from constructing on joint land absent ouster, property value diminution, or detriment; mere construction insufficient, especially if plaintiff has similar constructions and no easement proven. (28 words)
Headnote:(A) Civil Procedure Code, Order 39 Rules 1 and 2 - Temporary injunction - Co-sharers - Construction on joint land - Trial Court directed parties to maintain status quo qua construction, nature and possession of suit land; Appellate Court set aside order holding no material proving family partition supported by revenue records, mere separate occupation not partition, co-sharer cannot be restrained from raising construction unless ouster, diminution of value/utility or detriment to other co-owners shown, plaintiff himself raised construction hence unclean hands, no easement of support on joint land, no right to privacy without custom - High Court upheld Appellate Court as findings factually correct and consonant with law. (Paras 5-11)
(B) Co-ownership principles - (i) No absolute injunction against co-owner exceeding rights unless ouster prejudicial/adverse; (ii) Mere construction not ouster; (iii) Injunction if value/utility diminished or acts detrimental; (iv) Plaintiff must show material injury to position/enjoyment; (v) Relief discretionary on balance of convenience, justice, equity. (Para 9)
(C) Partition - Oral/family partition/arrangement for cultivation not valid without revenue record mutation/report; mere separate possession as co-sharer not partition. (Paras 6-7)
(D) Easement - No easement of support/light/air/privacy on joint land; damage to burdened land/building not actionable without prescriptive easement. (Paras 26-33)
Facts of the case:
Plaintiff claimed joint ownership/possession of suit land, alleged defendants illegally raising construction damaging residential house/boundary wall, changing nature/possession. Sought prohibitory/mandatory injunction. Trial Court granted status quo on construction/nature/possession. Defendants appealed successfully.
Findings of Court:
Appellate Court judgment correct; no infirmity; Trial Court erred in status quo as ingredients for injunction against co-sharer absent; findings prima facie only, Trial Court to proceed with suit uninfluenced.
Issues: Whether Trial Court's status quo order justified against co-sharer construction; validity of partition plea; proof of prejudice/detriment/ouster; applicability of easement for support/privacy.
Ratio Decidendi: Co-sharer entitled to construct on joint land portion in possession unless proven ouster, value diminution, detriment or easement; plaintiff with own construction cannot restrain others selectively; no injunction without specific prejudice, clean hands.
Result: Petition dismissed; interim order vacated.
Based on the provided legal document, here are the key points:
- The petition was filed by Bir Singh (Petitioner) against Tirath Raj and another (Respondents) challenging the judgment dated 18.07.2023 passed by the Appellate Court in CMPMO No.389 of 2023 (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- The Appellate Court allowed the appeal filed by the Respondents, setting aside the Trial Court's order dated 28.03.2023 which had directed the parties to maintain status-quo regarding construction, nature, and possession of the suit land (!) (!) (!) (!) (!) (!) (!) (!) .
- The Petitioner had filed a Civil Suit seeking a permanent prohibitory and mandatory injunction to restrain the Defendants from raising construction on the suit land, alleging joint ownership and illegal encroachment (!) (!) (!) .
- The Trial Court had initially granted status-quo based on three points: damage/obstruction to the boundary wall, damage to the residential house due to digging beneath it, and changing the nature of the suit land (!) (!) .
- The Appellate Court held that there was no material on record to prove a family partition, as revenue records showed the parties as co-sharers with separate occupation but no formal partition by metes and bounds (!) (!) (!) (!) (!) .
- Relying on Janku and others Versus Nagnoo and others, Leetho Versus Chamelo and others, and Mangat Ram Versus Gulat Ram, the Appellate Court ruled that mere separate enjoyment or cultivation arrangements do not amount to a formal partition without revenue record confirmation (!) (!) (!) (!) (!) (!) (!) (!) .
- The Appellate Court held that a co-sharer cannot be restrained from raising construction on joint land unless it is shown to cause prejudice, citing Ashok Kapoor Versus Mufrthu Devi (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- The Plaintiff (Petitioner) had already raised construction on a portion of the joint land, which disqualifies them from seeking an injunction against the Respondents under the principle of "clean hands" and estoppel (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- Precedents such as Hussan Lal vs. Krishan Devi, Lal Chand vs. Jagdish Kumar, Smt. Kalawati vs. Netar Singh, Raj Kumar versus Rakesh Kumar, Ajay Kumar Vs. Ishwar Dutt, Smt. Vyasa Devi Vs. Harish Kumar, Chanchal Kumar Vs. Prem Parkash, and Jai Singh VS Rajeev support the view that a co-sharer who has raised construction cannot restrain another co-sharer (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- The Plaintiff's claim regarding damage to the house and boundary wall due to excavation relies on the right of easement of support, which does not exist for land in an artificial/burdened state unless acquired by 20-year prescription under the Easements Act (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- The Plaintiff cannot claim a right of privacy or easement of support for the building as the land is not in its natural state and no 20-year prescription was established (!) (!) (!) (!) (!) (!) .
- The Plaintiff failed to specify the khasra number where the Respondents' construction was taking place, and even if it were on land in the Respondents' possession, it would not constitute prejudice to the Plaintiff (!) (!) (!) .
- The High Court upheld the Appellate Court's judgment, dismissing the petition and clarifying that the findings are specific to this petition and the Trial Court should proceed with the Civil Suit independently (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
| Table of Content |
|---|
| 1. factual background: suit for injunction against co-sharers' construction on joint land. (Para 1 , 2 , 3) |
| 2. trial court granted status quo due to alleged damage and nuisance. (Para 4 , 5) |
| 3. no partition without revenue records; co-sharers may construct absent prejudice. (Para 6 , 7) |
| 4. injunction requires proof of ouster, detriment, or unclean hands by plaintiff. (Para 8 , 9 , 10) |
| 5. petition dismissed; appellate order upheld. (Para 11) |
JUDGMENT :
Ajay Mohan Goel, J.
By way of this petition, the petitioner has assailed judgment dated 18.07.2023 (Annexure P-6), passed by the learned Appellate Court, in terms whereof, learned Appellate Court while allowing the appeal filed by the respondents herein, set aside the order passed by the learned Trial Court, in an application filed under Order 39, Rule 1 and 2 of the CIVIL PROCEDURE CODE , in terms whereof, learned Trial Court had directed the parties to maintain status-quo, qua the construction, nature and possession of the suit land.
2. Brief facts necessary for the adjudication of the present petition are that the petitioner/plaintiff filed a Civil Suit before the learned Trial Court, seeking permanent prohibitory injunction, to restrain the defendants from raising any construction over the suit land etc. A relief of mandatory injunction has also been sought in the same. In terms of the pleadings, the plaintiff claims that the suit land is jointly owned and possessed by the parties and that the defendants forcibly and illegally started raising unauthorized construction thereupon and thus, causing interference and obstruction upon the suit land. As per the plaintiff, the defendants were trying to damage the residential house as also the boundary wall of the plaintiff and were making an endeavour to change the nature and possession of the suit land. Along with the Civil Suit, the plaintiff also filed an application under Order 39, Rule 1 and 2 of the CIVIL PROCEDURE CODE and the learned Trial Court, in terms of order dated 28.03.2023 (Annexure P-5) directed the parties to maintain status-quo, qua construction, changing nature and possession of the suit land till final disposal of the suit.
3. Feeling aggrieved, the defendants filed an appeal and in terms of the impugned order, learned Appellate Court allowed the appeal.
4. Learned Counsel for the parties were heard at length by me and this Court has also carefully gone through the judgments passed by the learned Trial Court as well as the learned Appellate Court.
5. In terms of the order passed by the learned Trial Court, it held that the plaintiff had approached the Court feeling aggrieved by damage caused to the residential house as well as the boundary wall of the plaintiff, as also against the act of the defendants of changing the nature and possession of the suit land, with the ntention to occupy the vacant portion. It held that there was no invariable rule that until and unless the partition is carried out, a co-sharer cannot be permitted to raise construction over suit land which is joint in nature, subject to certain exceptions. Learned Trial Court, thereafter, went on to hold that the application rested on three points, particularly damage and obstruction to the boundary wall, by encroaching upon six feet of land towards the house of the applicant, secondly damage caused to the residential house by digging land under boundary wall of the house as there were big rocks underneath the boundary wall, all of which amounted to nuisance and thirdly, changing nature of the suit land. It, thereafter, held that the applicant had pleaded that the respondents intended to cause damage to the residential house of the applicant and from the pleading it seemed to be the case of the applicant that prejudice was likely to be caused as the respondents were digging beneath the boundary wall. It held that the case of the respondents was that they were not raising any construction over the suit land. It also held that it was settled
