Sandeep Sharma, J
1. Instant petition filed under Art. 227 of the Constitution of India, lays challenge to judgment dated 23.7.2020 passed by learned Additional District
Judge(2) Shimla, District Shimla, HP in Civil Misc. Appeal no. 15-S/14 of 2020, affirming order dated 13.7.2020 passed by learned Senior Civil Judge,
Court No. (2), Shimla, District Shimla, H.P. in C.M.A. No. 36/6 of 2020 (Civil Suit No. 65-1 of 2020), whereby an application under Order XXXIX,
rules 1 and 2 CPC having been filed by the petitioner/appellant/plaintiff (hereinafter, ‘plaintiff’), praying therein to restrain the
respondent/defendant (hereinafter, ‘defendant’) from doing any kind of digging/excavation or construction work of any kind over the suit land,
came to be dismissed.
2. Briefly stated the facts of the case, as emerge from the record, are that the plaintiff filed a suit for permanent prohibitory injunction, restraining the
defendant from raising any kind of construction and changing nature of the suit land, as described in the plaint and also for grant of injunction directing
the defendant to remove the construction, if any, found to have been raised by her and to restore the suit land to its original position. Alongwith
aforesaid suit, plaintiff also filed an application under Order XXXIX, rules 1 and 2 CPC for restraining the defendant from doing any sort of digging,
excavation or construction work over any portion of suit land, directly or indirectly in any manner, personally or through her agents, servants, family
members and contractors etc. Learned trial Court, vide order dated 23.7.2020 held that since requisite ingredients for grant of injunction are not
existing in favour of the plaintiff, application deserves dismissal. Feeling aggrieved and dissatisfied with aforesaid order refusing restraint order passed
by the trial court, plaintiff preferred an appeal under Order XLIII, rule 1(r) CPC before learned Additional District Judge(2), Shimla, District Shimla,
Himachal Pradesh, praying therein to set aside the aforesaid order and to restrain the defendant from raising any sort of construction during the
pendency of the suit. However, the fact remains that learned appellate court vide judgment dated 23.7.2020, dismissed the appeal, as a consequence
of which, order dismissing interim application, came to be affirmed. In the aforesaid background, plaintiff has approached this Court in the instant
proceedings.
3. Before adverting to the factual matrix of the case vis-Ã -vis prayer made in the petition at hand, this Court deems it proper to delve upon the
factors and principles to be borne in mind by the court, while considering application seeking injunction order. It is well settled that before grant of
injunction, court must be satisfied that the party praying for relief has a prima facie case and balance of convenience is in its favour. Besides above,
while granting injunction, if any, court is also required to consider that whether the refusal to grant injunction would cause irreparable loss to such a
party.
Apart from aforesaid well established parameters/ingredients, conduct of the party seeking injunction is also of utmost importance, as has been held by
Hon'ble Apex Court in case M/S Gujarat Bottling Co.Ltd. & Ors. v. The Coca Cola Co. & Ors., AIR 1995 237. 2In case a party seeking injunction
fails to make out any of the three ingredients, it would not be entitled to injunction. Phrases, “prima facie caseâ€, “balance of convenienceâ€
and “irreparable lossâ€, have been beautifully interpreted/defined by Hon'ble Apex Court in case Mahadeo Savlaram Shelke v. The Puna Municpal
Corpn., J.T. 1995(2) S.C. 504 relying upon its earlier judgment in Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 has held as under:
“...the phrases ""prima facie case"", ""balance of convenience"" and ""irreparable loss"" are not rhetoric phrases for incantation but words of width and
elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound
exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the
party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima
fade right and infraction of the enjoyment of him property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be
confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide,
which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court
further has to satisfy that non-interference by the court would result in ""irreparable injury"" to the party seeking relief and that there is no other remedy
available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession.
Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the Injury must be a
material one, namely one that cannot be adequately compensated by way of damages. The balance of convenience must be in favour of granting
injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or
injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the
injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the
subject matter should be maintained in status quo, an injunction would be issued. The court has to exercise its sound judicial discretion in granting or
refusing the relief of ad interim injunction pending the suit.â€
4. Similarly, issues with regard to rights and liabilities of co-sharers came to be dealt with by Division Bench of Punjab and Haryana High court in Sant
Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punjab 528, wherein it has been held as under:
(1) A co-Owner has an interest in the whole property and also in every parcel of it.
(2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed
to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession
on behalf of all, on the ground of ouster, the possession, of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as,
when a co-owner openly asserts his own title and denies that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or
abandonment.
(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.
(7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to
disturb the arrangement without the consent of others except by filing a suit for partition.â€
5. A Coordinate Bench of this Court in Ashok Kapoor vs. Murtu Devi 2016 (1) Shim. LC 207, had an occasion to deal with the issue of injunction,
wherein it, having taken note of various judgments rendered by Constitutional courts, concluded as under:
“46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and
liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:-
i) a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply
because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-
owner out of possession.
ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.
(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek
an injunction to prevent the diminution of the value and utility of the property.
(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to
prevent such act which is detrimental to his interest.
(v) before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would
affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with.
(vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumsta nces on the balance of convenience
and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.
47. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff:-
(i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction;
(ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's right or likely
infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and
(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted.
In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free
from blame and he approaches the Court with clean hands.â€
6. In the aforesaid backdrop as well as law laid down by Hon'ble Apex Court and other High Courts, this Court would proceed to decide the
controversy at hand.
7. Having heard learned counsel for the parties and perused the material available on record, this Court finds no illegality or perversity in the findings
recorded by both the learned Courts below, especially when it stands admitted by the plaintiff that there are constructions on the scattered portions of
land in question, where plaintiff claims land to be joint. When constructions have been raised by various cosharers/plot holders, status of land cannot
be said to be joint in nature, though it may be subsequently got partitioned in accordance with law.
8. There is statutory law governing relationship amongst cosharers inter se qua common property as such, matter is to be regulated by rules of justice,
equity and good conscience. While considering question of injunction, which needs to be decided on each peculiar fact, it is always for the court to
exercise /deny discretion in view of all the facts and circumstances of each case and to find out on which side balance of convenience lies.
9. Though, in the case at hand, pleadings as well as documents adduced on record by the respective parties indicate that the nature of suit land is still
joint because, till date, no partition has taken place inter se parties in accordance with law, but the plaintiff has not been able to dispute that their
predecessor-in-interest, during his life time had sold land to Gulpal, Kalpana and to one Shri Krishan, who further sold it to Smt. Ram Pati and such
persons have already raised construction over specific portions of land. One of the cosharers named herein above, namely Ram Pati is raising
construction at present and since it stands established on record that Surinder Kumar, father of the defendant had purchased 0-4 Biswa of land from
Jeet Ram, and he was put in possession over specific portion of land, plaintiff, who is otherwise uncle of the defendant, cannot be allowed to raise the
plea at this stage that since land in question is joint inter se parties, defendant should not be allowed to raise construction till the time suit land is
partitioned by metes and bounds. Aforesaid 0-4 Biswa of land purchased by Surinder Kumar from his father, subsequently came into share of present
defendant in family settlement. Defendant, in her reply to the application, has pleaded that the status of the suit land never remained ‘joint’
though the same is being reflected as ‘joint’ in the revenue papers. Father of the defendant, in family settlement, gave land out of his share to
the defendant and also handed over vacant possession thereof to her, as such, she is in exclusive possession of the said land since then. Defendant has
further claimed that she has spent a huge amount in developing the suit land. Besides above, defendant claimed that the plaintiff, Suresh Kumar
alongwith Narinder and Surinder is co-owner-in-possession of specific land, though the same has not been partitioned but portions of land were sold to
other persons, who had carried construction a long time back and, at that time, no objection was ever raised by any of the co-owners, as such, suit
deserves to be dismissed on this count. Defendant has further averred that the plaintiff and Narinder have 14 shares and her father, Surinder Kumar
had 26 shares, out of which he gave 152/1622 share measuring 00-01-52 Hectares of land to her and she is in possession of the same. It is further
averred in the reply that the plaintiff and Narinder Kumar sold portions of their shares during the life time of Jeet Ram and Surinder Kumar sold 12
shares out of his share to Gulpal and that is why, Surinder, father of the defendant was having 26 shares, whereas, plaintiff and Narinder Kumar were
having only 14 shares each as reflected in Nakal Khatauni. Defendant specifically denied that area of Khasra No. 58 is by the road side and plaintiff
will be deprived of enjoying his share abutting road side in case she is permitted to raise construction. Record reveals that the defendant, with a view
to strengthen her claim that her father purchased suit land from Jeet Ram also supplied photocopies of Sale deed No. 358/1999 and Jamabandi for the
years 1994-95, suggestive of the fact that the land comprising of Khata No. 2, Khatauni No. 4 min, Khasra No. 26, area measuring 2-3 Bigha is
exclusively owned and possessed by late Jeet Ram son of Shri Debu Ram. Most importantly, in the remarks column there is reference of Mutation
No. 299, which stands attested and sanctioned in favour of Surinder Kumar, father of the defendant.
10. Plaintiff before filing the suit against the defendant, did not file any suit against other subsequent vendees i.e. Gulpal, Kalpana and Smt. Ram Pati,
who is alleged to be raising construction during pendency of the instant proceedings, rather, he specifically chose the defendant to file the suit. As has
been taken note herein above, father of the defendant was put in possession of specific portion of suit land by late Jeet Ram. Plaintiff is required to
respect this arrangement and as such, his plea cannot be accepted that father of the defendant was not in possession over any specific portion of land.
11. Leaving everything aside, there is no dispute inter se parties that prior to filing of suit at hand, plaintiff’s brother namely Narinder Kumar had
filed a similar suit against the defendant alongwith an application under Order XXXIX, rules 1 and 2 CPC for grant of interim injunction. Application as
referred to above was dismissed vide order dated 1.7.2020 as such, same application though has been filed by the plaintiff cannot be said to be
maintainable, especially when in earlier proceedings, dispute is /was raised qua same land, which is subject matter of present suit. Conduct of the
plaintiff can further be taken note of by noticing that neither he nor his brother, Narinder Kumar chose to file suit against other persons namely
Kalpana and Smt. Ram Pati, rather, they both chose present defendant to file suit against her.
12. It is well settled by now that a person, who seeks equity must do equity as well. Besides above, it is pleaded case of the defendant that she filed
caveat against plaintiff and his brother, namely Narinder Kumar as Narinder Kumar failed to get said order in the suit having been filed by him, as
such, plaintiff, in the case at hand, wrongly averred in the plaint that cause of action accrued to him on 1.7.2020, when he filed suit against the
defendant. There cannot be any denial of the fact that a co-sharer who is in possession of the property is also entitled to the employment of the same.
The possession of one of cosharers is possession of all in the eye of law, unless the person who has been in exclusive possession asserts his title, in
himself to the exclusion of the other co-sharers which may amount to ouster.
13. During proceedings of the case, learned Counsel appearing for the plaintiff, placed reliance upon various judgments rendered by Hon'ble Apex
Court as well as this Court i.e. Parduman Singh and another vs. Naruin Singh and another (1991 CCC 803 (HP)N, agesh Kumar vs. Kewal Krishan
(AIR 2000 Himachal Pradesh 116) ,Shiv Chand vs. Manghru and others (2007(1) Shim. LC 389,) Prabhu Nath and another vs. Sushma (2014 (2)
Shim. L.C. 1003). Having carefully perused the aforesaid judgments pressed into service by learned Counsel appearing for the plaintiff, while
asserting claim of the plaintiff, this Court finds that ratio laid down in aforesaid judgments is with regard to rights of cosharer in the joint land,
particularly where nature of the suit land is joint and land has not been changed and there is no kind of construction activity by any of cosharers. Very
gist of the aforesaid judgments is that possession of one cosharer is possession of all the cosharers in joint land till the time same is partitioned by
metes and bounds but, in the case at hand, as clearly emerges from the pleadings as well as documents adduced on record that none of the parties
have come with the plea that they are in possession of the joint land, rather, plaintiff himself has not come up with specific plea that he is in possession
of any portion of joint land and revenue record itself suggests that the plaintiff alongwith his two brothers Suresh Kumar and Narinder Kumar was
having equal shares in the suit land at the time when they succeeded to the share of their mother, who in turn succeeded to share of Jeet Ram, who
happened to be maternal grandfather of the plaintiff-Suresh and his other brothers.
14. Contention of the plaintiff that best portion of the suit land is being utilized by the defendant for the construction of her house and such
construction, if allowed, will be detrimental to his valuable right, though appears to be attractive but has no merit, especially when pleadings and
documents available on record indicate that some of the cosharers in the suit land, have not only constructed their houses but also mortgaged the same
in favour of various financial institutions, as has been reflected in the mutations Nos. 457, 585 and 578.
15. In view of the aforesaid subsequent developments nature of the suit land cannot be said to be ‘joint’, rather, same stands changed.
Pleadings set up in the application as well as main suit also do not reveal that the defendant is raising construction on suit land exceeding her share and
as per entry in Nakal Khatauni and family settlement deed, defendant could be said to have gained possession in the suit land to the extent of one
share transferred in her name by her father, as such, learned Court below, while refusing restraint order against the defendant, has rightly concluded
that it would be unjustified to restrain her from utilizing the land falling to her share for construction of house, especially when other cosharers have
constructed their houses in other parcels of joint land to the extent of their shares. There is no material worth credence available no record suggestive
of the fact that the plaintiff had raised dispute/objection, if any, when other co-owners had raised construction of their houses in the suit land.
16. At this stage, Mr. Romesh Verma, Advocate, learned Counsel appearing for the plaintiff stated that since the plaintiff was not in picture when
such construction was raised, factum with regard to construction, if any, by other cosharers cannot be made ground to refuse injunction in the suit at
hand, but aforesaid plea of Mr. Verma deserves outright rejection for the reason that the plaintiff being son of Jeet Ram i.e. original owner of the suit
land, cannot be allowed to unsettle the things which were done by his father during his life time, rather, plaintiff is required to respect the arrangement
as was done by his father prior to his death, as such, he is estopped from claiming that father of the defendant was not in possession over specific
portion of suit land. Having perused the material available on record especially family settlement deed, it can be safely inferred that the defendant
stepped into the shoes of her father, Surinder Kumar, consequent upon execution of settlement deed in her favour.
17. Though, in the case at hand possession of the defendant over specific portion of land is disputed by the plaintiff but having carefully perused the
family settlement deed, it can be safely inferred that the defendant stepped into shoes of her father Surinder Kumar, consequent to execution of family
settlement deed in her favour and she having been given physical possession of her share in the suit land, cannot be restrained from raising
construction over the same till the partition of property in metes and bounds, especially when plaintiff has not been able to dispute that other cosharers
who were put in possession of specific portions of land, have not only raised construction but subsequently sold their shares to other persons. It is well
settled that any such person who comes in the foot step of a co-sharer has a right to enjoy the property, which is in his possession, till it is partitioned,
which will also include, to effect all necessary improvements, especially when the other party does not stand to lose in view of the specific undertaking
given by the party. {See. Satish Chander Sethi vs. Chuni Lal Shyam Sunder, 1996 (1) Civil Court Cases 164 (P&H)}.
18. Once, the plaintiff has not been able to dispute that father of the defendant i.e. Surinder Kumar had purchased 0-4 Biswa of land from his father,
Jeet Ram, during his life time, which ultimately came into share of the defendant herself in the family settlement, he is estopped from claiming that the
defendant herself is not in possession of specific portion of land, factum qua which otherwise stands recorded in the revenue record, as has been
taken note herein above. Plaintiff has simply stated that the defendant intends to raise construction on best portion of land on Shimla-Shoghi By-pass,
but it is not specifically spelt out in the pleadings in what manner, he will suffer damages in case, defendant is not restrained from raising construction,
as such, learned Courts below have rightly refused to grant restraint order as prayed for by him in the application filed under Order XXXIX, rules 1
and 2 CPC. It is clearly manifest from the record that defendant claimed possession of suit land qua share of her father on the basis of settlement
deed, as such, raising of construction on said parcel of land by no stretch of imagination can be said to be ouster of plaintiff from suit land, especially
when plaintiff has not come forward with the plea that said parcel of land was not allotted to father of the defendant prior to execution of settlement
and that his share will be decreased from the suit land in case, defendant is permitted to raise construction on the suit land.
19. Hon'ble Apex Court in Seema Arshad Zaheer & Ors. vs. Municipal Corporation of Greater Mumbai & Ors. (2006) 5 SCC 282, has held as under:
“29. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i)
existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for
protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's
rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary
injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the
plaintiff's conduct is free from blame and he approaches the court with clean hands.â€
20. It can be safely inferred from aforesaid law laid down by this court that grant of temporary injunction is not to be claimed by a party as a matter of
right nor can be denied by a court arbitrarily rather, discretion in this regard is to be exercised by a court on the basis of principles, as have been
enunciated in the aforesaid judgment.
21. A party seeking relief is not only required to establish prima facie case but also irreparable loss and injury which may be caused to it in case of
denial of grant of relief.
While deciding balance of convenience, court is required to weigh protection of plaintiff’s right against need for protection of defendant’s right
or infringement of right.
22. Consequently, in view of above, this court finds no illegality or infirmity with the judgment passed by appellate court below, which is accordingly
upheld. The petition at hand stands dismissed alongwith all pending applications. However, it is clarified that the defendant would not raise any
construction beyond her specific share in the suit land, as has been claimed in the instant petition and construction, if any, raised during the pendency
of the main suit, shall be subject to outcome of the said suit.
