A co-sharer cannot be restrained from raising construction on joint land solely on the ground of joint ownership, unless the act amounts to ouster, diminishes property value, or prejudices the other co-owners, provided the construction is within the co-sharer's share and the party seeking injunction comes with clean hands.

Romesh Verma, Judge:

The present petition arises out of the judgment, as passed by the learned District Judge, Shimla, dated 14.05.2024, whereby the appeal, as preferred by the present petitioner, was partly allowed and both the parties were directed to maintain status quo qua the nature, possession and construction over the suit land/property comprised in Khasra No. 436, measuring 00-01-62 hectares (Gair Mumkin Abadi), situated at Hadbast No.66, Mohal Manghech, Mauza Manghech, Tehsil and District Shimla, H.P., till the final disposal of the suit.

2. The facts of the case are that the plaintiff/respondent filed a suit for permanent prohibitory injunction, restraining the defendant from raising construction or changing the nature of the suit land, comprised in khewat khatauni No. 16/16, khasra No. 436, measuring 00-01-62 hectares, situated at Village Manghech, Mauja Manghech, Tehsil and District Shimla, till the suit land is not partitioned by metes and bounds.

3. It was averred in the plaint that the plaintiff is co-sharer/joint owner in possession over the suit property and the share of the plaintiff is recorded in the revenue record as per Jamabandi for the year 2012-13.

4. It is averred that the plaintiff and defendant had raised construction of house in the year 1975. The said house was constructed over khasra No. 436, which is recorded in Mauza Manghech. It is further averred that the defendant had recently started demolishing his portion of the house, situated over the suit property/land. Though, a request was made to the defendant not to demolish his portion of the house or not to cause any danger or damage to the portion of the house of the plaintiff, but the defendant did not adhere to the request of the plaintiff and demolished the portion of the house of the plaintiff.

5. It was further averred that the defendant is trying to permanently change the nature of the suit land against the detriment to the rights of the plaintiff, therefore, the plaintiff/respondent filed a suit for permanent prohibitory injunction, restraining the defendant, his agents, servants, contractors or any other persons acting for or under his direction or supervision from changing the nature of the suit land.

6. Along with the plaint, an application under Order 39 Rules 1 and 2 was also filed by the plaintiff and by means of the said application, it was prayed that the defendant be restrained from raising construction or changing the nature of the suit land.

7. The suit, as preferred by the plaintiff, was contested by the defendant by filing detailed written statement. It was averred in the written statement that the plaintiff has not approached the Court with clean hands. It was submitted that both the co-owners are in exclusive possession of their respective shares according to family settlement/arrangement, taken place amongst their ancestors and also recorded in the revenue record after settlement operation took place in the year 1999-2000, that too by the consent of the respective parties. The said fact was recorded in the revenue record by the officials of the Settlement Department and the parties to the suit had declared by giving their respective statements about the family arrangement taken place between them and a particular parcel of the land (khasra) in their possession according to factual possession/family arrangement at spot in the revenue record. The revenue record remained unchallenged and presumption of truth i