2025 Supreme(HP) 1789
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
AJAY MOHAN GOEL
Bir Singh – Appellant
Versus
Tirath Raj – Respondent
Advocates Appeared:
For the Petitioner:Ms. Madhurika Sekhon, Advocate.
For the Respondents:Mr. Sanjeev Kuthiala, Senior Advocate with Ms. Tamanna Sharma, Advocate.
Judgement Key Points
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 injuncti
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