Chaman Lal vs Dropti And Others

Vivek Singh Thakur, J

Petitioner herein is plaintiff in the suit filed by him against the defendants-respondents, with prayer for permanent prohibitory injunction, restraining

defendant No.1 Dropti from encroaching upon valuable portion and dispossessing the plaintiff, by raising construction of hotel over the suit land

comprised in Khasra No.1525, 1526 & 1527, situated in Mohal, Phati and Kothi Jagatsukh, Tehsil Manali, District Kullu, Himachal Pradesh, owned

jointly by plaintiff, defendant No.1 and others, till partition of the suit land, with alternative prayer for mandatory injunction, in case defendant No.1

succeeds in raising construction of hotel during pendency of suit, to demolish the construction and putting the suit land in its original position at the cost

and expenses of defendant No.1. In addition, prayer has also been made to restrain defendants No.2 and 3 from issuing NOC to defendant No.1 on

the basis of illegal Mauka Tatima, submitted by defendant No.1, till partition of the suit land.

Basis for filing suit, as averred in the plaint, is that plaintiff and defendant No.1 Dropti are joint owners in possession of the suit land, referred supra,

alongwith other co-owners/co-sharers and the land has not been lawfully partitioned between the co-sharers/co-owners and defendant No.1, without

consent of the plaintiff, has started raising construction of hotel over the valuable portion and front side of the suit land by dispossessing the plaintiff

forcibly from the suit land, with help of illegal Mauka Tatima of the spot issued by Revenue Authorities, reflecting defendant No.1 in exclusive

possession of the suit land, but contrary to the record.

Plaintiff, alongwith suit, had also filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, seeking temporary injunction,

restraining defendant No.1 from raising any sort of unlawful construction of hotel on the suit land and from occupying more valuable portion and front

side thereof, by dispossessing the plaintiff from his share in the suit land and also to restrain defendants No.2 & 3 from issuing NOC on the basis of

illegal Mauka Tatima, till final disposal of the suit.

Defence of defendant No.1, in nutshell, is that plaintiff and defendant No.1 alongwith other co-sharers are not reflected as co-sharers only in

Khasra No.1525, 1526 & 1527 but also in Khasra Nos.1499, 1500, 1501, 1504, 1505 and 1511, and land comprised in all these khasra numbers, divided

in separate chunks of land, is in exclusive and settled possession of each co-sharer/family of co-sharers as per family arrangement/partition amongst

all co-sharers effected long back and defendant No.1 is in exclusive and settled possession of the land comprised in Khasra No.1525, 1526 & 1527

and the plaintiff had already raised construction of double storeyed lintel-roofed building many years back and a double storeyed tin-roofed cowshed

on the land comprised in aforementioned khasra numbers, other than Khasra No.1525, 1526 & 1527, and not only plaintiff but other co-sharers,

namely Rishi Kumar and Tikki Devi, have also constructed single storeyed lintel-roofed house, which is also under construction on the alleged joint

land and further that late father of defendant No.1 Bhola Ram was also having old house on the suit land comprised in Khasra No.1525 and there is

an orchard developed by defendant No.1 and her predecessor-in-interest on the suit land comprised in Khasra No.1525, 1526 & 1527 and defendant

No.1 had entered into agreements for sale of the crop, vide written agreement for the years 2009 to 2013 with one contractor and in the year 2017

with another contractor, which indicates exclusive possession of defendant No.1 on the suit land.

It is also case of defendant No.1 that after demolition of her old house, situated in Khasra No.1525, she had also constructed a single storeyed tin-

roofed residential house on the land falling in her share, in May 2018, to the notice and knowledge of the plaintiff and other co-sharers and further that

thereafter she had started construction of the hotel building on the suit land in the month of November, 2018 and had completed one storey of the hotel

by laying a lintel on the same well before filing of the suit and also with the notice and knowledge of the other co-sharers, including plaintiff, after

getting necessary approval from the Town and Country Planning Department (TCP), NOC from Gram Panchayat and Mauka Tatima from Revenue

Authorities. Defendant No.1 had also placed on record letter of approval from TCP, copy of Jamabandi, approved building plan, photographs of the

buildings of the plaintiff and defendant No.1, hotel and old house, electric bill of old house of defendant No.1 and photographs of Rishi Kumar’s

and Tikki Devi’s houses and also NOC issued by Gram Panchayat Jagatsukh as well as Mauka Tatima issued by Revenue Authorities. Defendant

No.1 had also placed on record agreements dated 14.1.2009 and 23.3.2017 entered for sale of crop of orchard, situated on Khasra No.1525, 1526 &

1527, with Mohan Lal and Nishant Thakur respectively in respective agreements.

Mr. Maan Singh, learned counsel for the plaintiff, relying upon judgment of a Coordinate Bench of this Court in Ashok Kapoor v. Murtu Devi,

2016(1) Shim.LC 207, has submitted that defendant No.1 is claiming ouster of plaintiff and other co-sharers in the suit land despite admitting that she

has been reflected a co-owner of the property in the revenue record, which is inconsistent with rights of other co-owners, amounting to denial of their

legal rights and, therefore, defendant No.1 cannot claim right to raise construction upon suit land without consent of the plaintiff and other co-owners

which is detrimental to the interests of other co-owners. Learned counsel has further submitted that defendant No.1 is not raising construction of her

house but of a hotel and, therefore, plea that plaintiff and other co-owners already had raised construction of their houses on the suit land is not

available to defendant No.1 as she, in addition to construction of her house, is raising construction of hotel on the suit land which is yet to be

partitioned.

Learned counsel for defendant No.1 has submitted that despite the fact that plaintiff and defendant No.1 have been recorded joint-owners over the

land comprised in several Khasra numbers, i.e. from 1499 to 1527, as referred supra, the suit has been filed only with respect to Khasra No.1525,

1526 & 1527, without disclosing the fact that plaintiff and defendant No.1 are not joint owners only in these khasra numbers, shown as suit land, but

also in other khasra numbers wherein other co-owners/co-sharers, including plaintiff, had already raised construction of their respective houses.

It is further case of defendant No.1 that she had already filed proceedings for partition of the suit land, wherein initially plaintiff had chosen not to

be represented and was proceeded exparte and thereafter he had filed appeal before Sub Divisional Collector which stands dismissed and thereafter

dismissal of the appeal has been assailed by the plaintiff before Divisional Commissioner, wherein no stay has been granted in favour of the plaintiff,

and instead of cooperating for culmination of partition proceedings, the plaintiff is trying to linger on the same in order to defeat legal right of defendant

No.1.

Learned counsel for defendant No.1 has further submitted that defendant No.1 is not raising any new construction on the spot but has raised

construction of her house after dismantling the old house inherited by her from her father and construction of hotel is being raised on the vacant land,

left after construction of her house in the suit land, and the entire suit land comprised in Khasra No.1525, 1526 & 1527 is in her exclusive possession,

whereas plaintiff and other co-sharers/co-owners are in exclusive possession of other khasra numbers reflected as joint in the revenue record, but the

plaintiff had suppressed material facts from the Court and did not approach the Court with clean hands and had not disclosed the entire facts so as to

paint construction raised by defendant No.1 as illegal and unauthorized in order to cause unnecessary loss to defendant No.1.

Learned counsel for defendant No.1 has also referred to photographs, placed on record, wherein old house owned and possessed by defendant

No.1 is existing, surrounded by a boundary wall, on the spot and thereafter subsequent photograph wherein new construction on the same spot after

dismantling the old house, surrounded by boundary wall, is visible. Learned counsel has also referred to photographs wherein houses of defendant

No.1, co-owner Rishi Kumar and plaintiff have been reflected.

Learned counsel for defendant No.1 has also submitted that construction was started in the year 2018 and substantial construction of first floor

upto lintel level was complete even before filing of the suit and while construction of second floor was in progress, plaintiff filed the suit but, without

disclosing complete facts, obtained interim stay order from the trial Court, which has rightly been set aside by the learned District Judge in the appeal

preferred by defendant No.1.

Learned counsel for defendant No.1 has placed reliance upon a judgment passed by Single Bench of this Court in CMPMO No.117 of 2008, titled

as Parmeshwari Dass v. Ichha Ram, decided on 23.5.2008, wherein it has been observed as under:

“Normally, in case where joint possession of co-sharers is recorded this Court would have granted a stay but the facts of the present case show

that though the land in the revenue record may be shown as joint in actual fact almost all co-sharers have raised construction on some specific portion

of the suit land. Now the plaintiff wants to protect the vacant portion on the ground that he has developed an orchard over the same. This cannot be

permitted. The plaintiff should have sought partition of the entire holding before himself raising construction. Once he raised the construction without

obtaining partition then he cannot claim that the other co-sharers should be restrained from raising construction on the vacant portion.â€​

Reliance on behalf of defendant No.1 has also been placed on Smt. Kalawati v. Netar Singh & others, AIR 2016 HP 85, wherein this Court has

made the following observations:

“10. It would be evident from the decision, the mere fact that the parties are co-owners and joint owners etc. is not the sole criteria for granting or

refusing injunction, the conduct of the parties too plays an important role and in such like cases, the plaintiff conduct has to be free from blame so as to

enable the court to conclude that the plaintiff has approached the Court with clean hands. But here is a case where the petitioner though claims

herself to be a joint owner with the respondents after having already raised construction over the suit land seeks an injunction against the respondents

without even disclosing this fact.

The injunction being an equitable relief, the person seeking injunction must come with clean hands. The well known mechanism that applies in such

matter is “he who seeks equity must do equityâ€. Since the petitioner has admittedly raised construction of her house(s) on a portion of the suit

land, she is estopped and has waived of her right to assail and question the construction being raised by the respondents. The fact that the petitioner

has not approached the court with clean hands in itself is a sufficient ground for not granting the relief of injunction.â€​

Reliance has also been placed on Sarla Devi v. Madan Singh & others, Latest HLJ 2018 (HP) 430; and Chanchal Kumar v. Prem Parkash and

antoher, 2019(1) Civil Court Cases 793 (HP), wherein it has been held that where plaintiff himself/herself has constructed a house over one portion of

joint land, there he or she is not entitled to raise objection, if any, qua construction over other portion of the land by defendant(s).

In rebuttal, though existence of construction of house by plaintiff and co-owners is not disputed in other khasra numbers, jointly owned by plaintiff,

defendant No.1 and other co-owners, however, it has been submitted that facts in present case are entirely different from facts in the case law

referred on behalf of defendant No.1, as plaintiff is residing in the suit land since long whereas defendant No.1 is not permanent resident of the village

but has inherited the property from her father and she is not constructing her residential house but a hotel upon the joint land without consent of co-

owners, though after dismantling the old building but covering much more area of vacant land than the area existing beneath the old house and,

therefore, such construction, without consent of co-owners, is not permissible.

It is further submitted on behalf of plaintiff that partition proceedings filed by defendant No.1 are not disputed but the same have been filed after

filing of the suit wherein plaintiff has wrongly been proceeded ex-arte and, therefore, he is assailing the mode of partition adopted by the Assistant

Collector and further, in any case, filing of partition proceedings also reflects that suit land has not been partitioned yet.

In Ashok Kapoor’s case, relied upon by the plaintiff, the Court, after considering plethora of judgments, had summarized certain principles,

which may be relevant in this case also, which read as under:

“46. ………….

(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 circumstances on the balance of convenience

and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.

…………….

(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€​

The mere fact that the parties are co-owners and joint owners etc. is not the sole criteria for granting or refusing injunction. It may be one of the

criteria but has to be considered alongwith other facts and each case is to be decided in its peculiar facts and circumstances by applying the

parameters required to be taken into consideration for granting temporary injunction.

In present case, plaintiff has not disclosed complete facts and detail with respect to the entire property owned jointly by the plaintiff, defendant

No.1 and other co-sharers but he has selected only three khasra numbers, regarding exclusive possession whereof defendant No.1 has placed on

record sufficient material, and further except making a bald statement that defendant No.1 is adamant to raise construction of hotel over the suit land

in order to occupy more valuable portion and front side, no other averment or material has been placed on record to establish that land being occupied

by defendant No.1 is more valuable being front side than the land occupied by plaintiff comprised in other khasra numbers owned jointly by the parties.

How and in which manner rights and interests of the plaintiff are going to be affected adversely, on account of construction being raised by defendant

No.1, has not been reflected either in the plaint or from the documents relied upon by the plaintiff. There is no material on record reflecting that the

act of defendant No.1 is causing any loss or injury, muchless substantial loss or injury, for construction being raised by her. Case of the plaintiff is

simliciter that defendant No.1 is raising construction on the suit land, that too of a hotel, but without consent of the joint owners. Joint ownership and

absence of consent of co-owner(s) is definitely a relevant fact to be considered for granting stay in suit filed by a co-owner but it cannot be a

straitjacket formula to grant stay in each and every case and, at the same time, construction already raised by plaintiff on the joint land may not be a

rule for disqualifying the plaintiff from obtaining the stay against construction being raised by one or more of the co-owners/co-sharers but, in such

eventuality, plaintiff (co-owner) has to establish on record the substantial loss or injury to the plaintiff being caused by the construction being

undertaken/raised by co-sharer/co-owner,to tilt the balance of convenience in favour of the plaintiff for granting the interim stay.

In present case, trial Court has failed to appreciate the material and facts on record in right perspective for the purpose of granting or refusing

interim stay, whereas learned District Judge, in my opinion, has appreciated the material on record in its right perspective.

It is made clear that observations made by this Court as well as learned District Judge are to be construed to have been made only for the purpose

of adjudication of prayer for interim stay made by the plaintiff, which shall not have any effect or bearing on the merits of the case which are to be

assessed by the trial Court after evaluating the evidence led before it, in accordance with law and in case, on conclusion of trial, merit in the case of

plaintiff is found on the basis of material on record, defendant No.1 shall not have any equitable right or claim for construction raised during pendency

of the suit on the suit land and in that eventuality trial Court shall pass appropriate orders in this regard.

In view of the above discussion and the case law relied upon by the parties, present petition, being devoid of merit, is dismissed. Interim stay stands

vacated. Pending application(s), if any, also stand disposed of.