Naveen Kumar And Another vs Inder Dev And Another

Satyen Vaidya, J

By way of instant petition under Article 227 of the Constitution of India, the petitioners have assailed order dated 17.02.2025 passed by learned Additional District Judge-II, Mandi, District Mandi, H.P. in Civil Miscellaneous Appeal No. 06 of 2024 whereby the order dated 02.09.2024 passed by learned Civil Judge, Court No. II, Mandi in CMA No. 173/2024 has been set-aside.

The petitioners herein are the plaintiffs in Civil Suit No. 50 of 2024 pending on the files of learned Civil Judge, Court No. II, Mandi, District Mandi, H.P. They have filed the suit for the relief of permanent prohibitory injunction against the respondents/defendants to restrain them from stacking any construction material or raising any construction over the suit land till its partition by metes and bound. The suit land is shown as comprised in Khata Khatauni No. 26/28, Khasra Nos. 1391/18, 1392/18, 1396/18, Kita 3, measuring 03-04-01 bighas, situated in Muhal Behna/210, Tehsil Balh, District Mandi, H.P. (hereinafter referred to as the suit land).

The parties herein shall be referred to by the same status as they hold before the learned trial Court.

The plaintiffs have filed the suit on the premise that the suit land is joint between the plaintiffs, defendant No.1 and other co-sharers. It has not been partitioned by metes and bound. The defendants had started construction on most valuable part of the suit land and, that too, by exceeding their share. The plaintiffs have mentioned in the plaint that the suit land abuts the National Highway and has high commercial value. The plaintiffs are also objecting to the construction being raised by the defendants on the ground that the said construction is without sanction of map by the Municipal Council, Mandi. In this background, a decree of injunction, as noticed above, has been claimed against the defendants.

The defendants have filed their written statement. Though, the fact that the suit land is joint between plaintiffs, defendant No.1 and other co-sharers is admitted, yet, the defendants have specifically pleaded that their old house was damaged as a result of construction of four lane National Highway and they were compensated by NHAI authorities. Since, they had been rendered houseless, they were raising construction of a house on the same land where the old house existed. The allegations that the construction being raised by the defendants was in excess of their share has also been specifically denied.

Along with the suit, the plaintiffs also filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure (for short “the CPC”) for interim injunction.

Learned trial Court allowed the application of the plaintiffs vide order dated 02.09.2024 and directed both the parties to maintain status quo qua nature, possession and construction on the suit land.

The defendants challenged the aforesaid order passed by learned trial Court by filing an appeal under Order 43 Rule 1 (r) of the CPC. Learned Additional District Judge-II, Mandi has allowed the appeal and the applications of the plaintiffs under Order 39 Rules 1 & 2 of the CPC has been dismissed vide impugned order.

I have heard learned counsel for the parties and have also gone through the records of the case carefully.

The suit land is joint and is not partitioned by metes and bound is a fact that has remained undisputed. What has merged from the records is that the partition proceedings have been initiated by some of the co-sharers and are still pending. The total area of the suit land is 3 bighas 4 Biswas. Both the plaintiffs have share of about 6 Biswas each. Similarly, defendant No.1 is also owner of share almost to the same extent. Defendant No.2 is the son of defendant No.1.

Merely because the land is joint, one of the co-sharers cannot be injuncted from enjoying his share unless it is established that such enjoyment is prejudicial to the rights of the others. The onus to establish such a prejudice is on the plaintiffs. The prejudice can be established in a large number of ways; exhaustive list of which cannot be possibly drawn. However, the instances of such prejudice can be similar or akin to what has been alleged by the plaintiffs herein. According to the plaintiffs, the suit land has high commercial value and the defendants were raising construction on the valuable portion of the suit land. Another allegation is that the defendants are raising construction by exceeding their share.

The question is whether the plaintiffs have been able to prima-facie establish any of these allegations. In my considered view, the answer has to be in negative.

The averments made by the plaintiffs in the plaint is that the suit land is abutting the National Highway. The are of entire suit land is more than 3 Bighas. They have not alleged anything which may establish that the land sought to be utilized by the defendants has some special value or has some exclusivity attached to it. Similarly, there is nothing on record to suggest that the defendants were raising construction by exceeding their share. That being so, no fault can be found with the impugned order. The plaintiffs have failed to establish existence of prima-facie case in their favour. As sequel, even the balance of convenience and irreparable loss could not be held to exist in their favour.

Learned Additional District Judge-II, Mandi has formed the opinion from the photographs that the construction was at advanced stage. The fact that the old house of the defendants was damaged and their new house was also on the same place, has also not been specifically controverted by the plaintiffs. The documents placed on record reveal that learned trial Court had directed the police to implement its interim order. In one of the reports submitted by the police, it was found that the defendants were raising retaining wall below their residential house.

Thus, none of the allegations levelled by the plaintiffs can be said to have been prima-facie established on record. Rather, the defence of defendants appears to be prima facie probablised. As regards the allegation of construction being without approval of local authority that again can be a cause to injunct a co-owner without prima facie proof of prejudice to the plaintiffs.

In result, I find no material to interfere with the impugned order in exercise of jurisdiction under Article 227 of the Constitution of India as the impugned order can neither be said to be illegal nor perverse. The petition is accordingly dismissed.

The petition stands disposed of in above terms, so also the pending application(s), if any.

The observations hereinabove have been made only for disposal of this petition and shall not be construed to have any bearing on the merits of the case.