Ramesh Kumar vs Sheetal And Others

Sandeep Sharma, J

petition filed under Art. 227 of the Constitution of India, takes exception to judgment dated 9.10.2020 passed by learned District Judge, Shimla in

CMA No. 37/2020 affirming order dated 5.9.2020 passed by learned Civil Judge, Court No. 3, Shimla, District Shimla in CMA No.303/2020 in Civil

Suit No. 47/2020, whereby an application having been filed by the petitioner-plaintiff (hereinafter, ‘plaintiff’) under Order XXXIX, rules 1 and 2

CPC, seeking therein direction to restrain the respondents/defendant (hereinafter, ‘defendants’) from raising any type of construction over land

denoted by Khasra No. 176, situate in Mohal Tafera, Post Office Kali Hatti, Hadbast No. 151, Sub Tehsil Dhami, District Shimla, Himachal Pradesh

(hereinafter, ‘suit land’) during the pendency of suit, came to be dismissed.

For having bird’s eye view of the matter, certain undisputed facts as emerge from the pleadings adduced on record by respective parties are

that the plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from raising construction on suit land, as detailed herein

above, and for granting mandatory injunction directing defendant No.1 to remove construction raised by him during the pendency of the suit, in the

court of learned Civil Judge (Junior Division), Shimla, averring therein that he became co-owner to the extent of 843/255709 shares measuring 25-57-

09 hectares in land comprised in Khewat Khatauni No. 1/1 to 9, total Khasra 133, measuring 25-57-09 Hectares, situate in Mohal Tafera, Post Office

Kali Hatti, Hadbaast No. 151, Sub Tehsil Dhami, District Shimla, by virtue of sale deed dated 1.12.2014. Plaintiff also claimed that at the time of

execution of aforesaid deed dated 1.12.2014, he was also delivered possession of Khasra Nos. 176 and 168, whereafter he had raised a Dhara on

such land. Plaintiff also averred that since suit land is joint inter se parties, two co-owners namely Mukesh Kumar and Aruna Kumari, filed partition

proceedings before competent Authority and during such proceedings, Tatima was issued by revenue agency depicting therein his possession on

Khasra No. 176 i.e. suit land. Plaintiff further claimed before learned trial Court that in the aforesaid partition proceedings, respondent No.3 was being

represented by respondent No. 2 on the strength of General Power of Attorney executed by respondent no.3, as such, he was fully aware of the

factum with regard to sale of land to various persons, including him. Plaintiff alleged in the suit that respondent No.2 being General Power of Attorney

of respondent No.3 got transferred some land by way of gift deed/sale deed in favour of his wife i.e. defendant No.1, and such, transactions are illegal

and sham. Lastly, the plaintiff averred in the suit that on 8.6.2020, he, after having noticed factum with regard to unauthorized construction being

carried out by respondent No.1 on suit land, has filed instant suit for permanent prohibitory injunction, restraining defendant No.1 from interfering in

the suit land. Alongwith aforesaid suit, plaintiff also filed an application under Order XXXIX, rules 1 and 2 CPC, seeking interim injunction to restrain

the defendants from raising any construction over the suit land till final disposal of the case.

Defendants, in their reply to the application, while admitting factum with regard to purchase of shares in the suit land to the extent of 843/255709,

measuring 00-08-43 hectares in the joint land, comprised in Khewat Khatauni No. 1/1 to 9, total measuring 25-59 Hectares, categorically denied that

exclusive possession of Khasra Nos. 176 and 168 was delivered to the plaintiff. Defendants claimed before learned trial Court that total area of

Khasra No. 176 is 00-88-57 hectares and that of Khasra No. 168 is 00-43 -05 hectares, whereas, plaintiff purchased area much lesser than the total

area of Khasra Nos. 176 and 168 and as such, there was no occasion to deliver him possession qua entire area of aforesaid Khasra numbers.

Defendants averred in their reply that defendant No.3 and his sons came in possession of Khasra Nos. 176 and 168, after the death of their

predecessor-in-interest i.e. Dhani Ram, whereafter, they transferred some portion of suit land to defendant No.1. Defendants, claimed before learned

trial Court that after purchase of aforesaid land, defendant No. 1, started construction work in March, 2019 and till date, she has spent a sum of

Rs.35.00 Lakh on account of development of land as well as construction of boundary walls. Defendants specifically denied that the factum with

regard to construction on suit land came to the knowledge of plaintiff on 8.6.2020 and they claimed before learned trial Court that they have no

objection in case construction is carried out by plaintiff in some other portion of suit land, which is still vacant.

On the basis of aforesaid pleadings adduced on record by respective parties as well as evidence led on record, learned trial Court dismissed the

application filed under Order XXXIX, rules 1 and 2 CPC.

Being aggrieved and dissatisfied with the aforesaid findings returned by learned trial Court, plaintiff preferred an appeal before learned District

Judge, Shimla, who vide judgment dated 9.10.2020, dismissed the appeal, as a consequence of which, order passed by learned trial Court dismissing

the application of plaintiff, came to be upheld. In the aforesaid background, plaintiff has approached this Court in the instant proceedings.

I have heard learned counsel for the parties and perused the material available on record.

It is well settled that before grant of injunction and considering prayer for discretionary relief, court must be satisfied that the party praying for relief

has a prima facie case and balance of convenience is also in its favour. While granting injunction, if any, court is also required to ascertain whether

refusal to grant injunction would cause irreparable loss to such party. Apart from aforesaid well established parameters/ingredients, conduct of a party

seeking injunction is also of utmost importance. Reliance in this regard is placed upon judgment rendered by Hon'ble Apex Court in case M/S Gujarat

Bottling Co.Ltd. & Ors. v. The Coca Cola Co. & Ors., AIR 1995 2372. In 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 convenience†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€​

Careful perusal of aforesaid judgment rendered by Hon'ble Apex Court clearly suggests that existence of three basic ingredients i.e. prima facie

case, balance of convenience and irreparable loss or injury is mandatory for passing an order of injunction under Order XXXIX, rules 1 and 2 CPC. It

is also well settled by now that aforesaid thre ingredients are not only to exist but must coexist. In this regard, reliance is placed upon judgment

rendered by Hon'ble Apex Court in Best Sellers Retail (India) Private Ltd. vs. Aditya Birla Nuvo Ld. And others, (2012) 6 SCC 79, 2wherein, it has

been held as under:

“29. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if

the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable.

In Dalpat Kumar & Anr. v. Prahlad Singh & Ors. [(1992) 1 SCC 719] this Court held:

“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 injuryâ€​ 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.â€​

To quote the words of Alderson, B. in The Attorney-General vs. Hallett [153 ER 1316: (1857) 16 M. & W.569]:

“I take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated by any decree which

the Court can pronounce in the result of the cause.â€​

Hon'ble Apex Court in Dalpat Kumar and another vs. Prahlad Singh and others (1992) 1 SCC 719 has categorically held that prima facie case is

not to be confused with prima facie title, which requires to be established on evidence at the trial. Mere 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. Since

purpose of temporary injunction is to maintain status quo, court, while granting such relief, should be satisfied that prima facie case has been made out

and balance of convenience is in favour of the plaintiff and refusal of injunction would cause irreparable loss and injury to him.

Since, in the case at hand, it is not in dispute that the parties to the lis are joint owners of suit land and by way of application at hand, injunction is

being sought against one of the co-owners, it would be apt to deal with rights and liabilities of cosharers. In this regard, reliance is placed upon

judgment rendered by a 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€​

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.

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€​

Now, being guided by aforesaid law laid down by Hon'ble Apex Court as well as other High Courts, this Court would make an endeavour to deal

with the issue at hand.

Having heard learned counsel for the parties and perused the material available on record, there appears to be no illegality committed by learned

Courts below while passing impugned judgment and order, especially when it stands established on record that the parties are joint owners of the suit

land and at no point of time, exclusive possession of entire Khasra N. 176 was delivered to the plaintiff. As per material available on record, plaintiff

became co-owner of suit land to the extent of 843/255709 shares comprised in Khewat Khatauni No. 1/1 to 9, total Khasra 133, measuring 25-57-09

hectares, by way of execution of sale deed dated 1.12.2014. Though the plaintiff in the case at hand, has claimed that at the time of execution of

aforesaid sale deed, he was also delivered possession of Khasra Nos. 176 and 168, but such plea of him cannot be accepted, for the reason that total

area of Khasra No. 176 is 00-88-57 hectares and that of Khasra No. 168 is 00-43- 05 hectares, whereas, as has been taken note herein above,

plaintiff purchased much lesser area than the area of aforesaid Khasra numbers. Though, in the case at hand, plaintiff, while himself stating in the

plaint that defendant No.1 was gifted specific area in Khasra No. 176, with a view to establish the factum, if any, of delivery of possession at the time

of execution of sale deed dated 1.12.2014, placed heavy reliance upon Tatima allegedly issued by revenue agency in partition proceedings initiated at

the behest of co-owners, Mukesh Kumar and Aruna Kumar, wherein he has been shown in possession of Khasra No. 176. However, both the learned

Courts below have rightly concluded that presumption of truth cannot be attached to aforesaid document, because Tatima is ordinarily placed reliance

for identifying area and by no stretch of imagination, can be used to prove possession of specific party. In the Jamabandi for the years 1996-97, Dhani

Ram, predecessor-in-interest of defendant no.3 and Shri Kirpa Ram, were recorded as co-owners in equal shares of land denoted by Khewat

Khatauni No. 1/1 to 9, Kita 133, measuring 25-57-09 hectares and Khasra No. 176 is also part of aforesaid land. It is admitted case of the parties that

after death of Dhani Ram, his share in his property came to be inherited by defendant No.3 and his sons, Manoj Kumar, Kamlesh Kumar and Mukesh

Kumar, who sold 843/255709 shares measuring 00-08-43 hectares in Khewat Khatauni No.1/1 to 9, Kita 133, measuring 25-57-09 hectare, on the

basis of Jamabandi for the years 2010-11 to the plaintiff vide sale deed dated 1.12.2014. Defendant No.3 being General Power of Attorney of

defendant No.2, gifted land measuring 00-02-32 hectares out of land comprised in Khasra Nos. 172, 173 and 176 to his wife i.e. defendant No.1, and

as such, it is quite apparent that defendant No.1 was gifted specific area in Khasra No. 176 whereas, plaintiff was sold share in the entire joint land by

defendant No.3 and his sons. Possession of Khasra No. 176 at the time of execution of aforesaid transaction was with Dhani Ram or his successors,

as is evident from Jamabandi for the years 1996-97 and 2015-16. Record reveals that the plaintiff purchased only a particular share in big chunk of

land whereas, defendant No. 1 was given a particular share measuring 00-02-32 hectares in Khasra Nos. 172, 173 and 176. Plaintiff, with a view to

prove his possession qua Khasra No. 176, has claimed that at the time of execution of sale deed, he was also delivered possession, whereafter, he had

raised a Dhara on the said land, but the aforesaid Dhara was allegedly dismantled by the defendants, plaintiff lodged an FIR. Plaintiff has also claimed

that defendant No.2 himself, misusing Power of Attorney executed in his favour, has snot only sold but given some share of joint land to defendant

No.1, but such ground appears to have been taken casually, because, at no point of time, execution of General Power of Attorney as well as making

gift of some portion of land on the strength of aforesaid General Power of Attorney came to be laid challenge by defendant No.3 in any court of law.

Besides aforesaid grounds, plaintiff has claimed that even on the principle of co-ownership, defendants cannot be allowed to raise construction

because, he being co-owner has right over every inch of joint land until partition is effected in accordance with law.

Needless to say, presumption of truth is attached to entries recorded in Jamabandi, unless same are repudiated by the opposite party. As has been

taken note herein above, in Jamabandi for the years 1996-97, Dhani Ram, predecessor-in-interest of defendant No.3 and Kirpa Ram were recorded

owners in possession of Khasra No. 176. Plaintiff came to be recorded in possession of Khasra No. 176 in the Jamabandi for the years 2015-16.

Record reveals that defendant No.3 gifted certain share in Khasra No. 176 to defendant No.1 and accordingly, mutation came to be attested in her

favour, as such, contention of the plaintiff that he was delivered possession of Khasra Nos. 176 and 168 stands falsified.

Since, 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.

Though, in the case at hand, material available on record clearly reveals that nature of suit land is joint because, till date, no partition has taken place

inter se parties in accordance with law, but plaintiff has not been able to prove that at the time of execution of sale deed dated 1.12.2014, he was

given exclusive possession of Khasra No. 176, rather, as per his own case, he had purchased some share measuring 00-08-43 hectares in joint

land/suit land. To the contrary, documentary evidence in the form of revenue papers, clearly suggests that defendant No. 1 was gifted specific area in

Khasra No. 176 and at that time, possession of entire area of Khasra No. 176 was either with Dhani Ram or his successors, as is evident from

Jamabandi for the years 1996-97 and 2015-

Question with regard to rights of co-shares to raise construction on joint land stands duly settled by a judgment passed by this Court in Jatinder

Kumar vs. Kusum Lata, Latest HLJ 2016 (1) (HP) 638, relevant portion whereof is reproduced herein below:

“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 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.â€​

It is quite apparent from the aforesaid exposition of law that 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. Mere making of construction or improvement in the

common property does not amount to ouster rather, if by any 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. 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.

In Sanjay Sood vs. Roshan Lal and another, Latest HLJ 2006(1) 209 HPH,C it has been categorically held that when it stands established that co-

owner is in exclusive possession of any property and he/she, after having spent huge sum, made some improvements, no injunction should be granted.

Similarly, this court in Jatinder Kumar (supra) has categorically held that there can be no strait jacket formula to hold and conclude that in the absence

of partition, a co-sharer cannot under any circumstance be permitted to raise construction over the joint land.

Similarly, in Kuldeep Singh vs. Jai Singh & Anr, Civil Court Cases 803 (P&H), it has been held that temporary injunction can not be claimed by

co-owner against other co-owner, who has been in exclusive possession of entire or part of property unless the act of co-owner amounts to ouster

which is prejudicial or adverse to the interest of co-owner out of possession. In the case at hand, defendants have specifically stated that they shall

have no objection, if the plaintiff raises construction on the vacant land.

In Karam Singh vs. Lakhbir Kaur, 2011 (3) Civil Court Cases 162, it has been held that relief of injunction can be sought by a co-sharer against

other co-sharers when such a co-sharer happens to be in exclusive possession of the land to the exclusion of other co-sharers, but when the

possession of all the co-sharers is joint, relief of injunction cannot be sought by either of the co-sharers and the only relief which is available to the co-

sharer is to seek partition by metes and bounds.

Having carefully perused the material available on record, this Court is in total agreement with the findings returned by learned Courts below that

the plaintiff has not only failed to show prima facie case in his favour rather, none of other ingredients i.e. balance of convenience and irreparable loss

or injury enabling this Court to exercise discretion, are missing, as such, no fault, if any can be found with the judgment and order passed by learned

Courts below.

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€​

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.

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), Nagesh 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 bound. However, 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 joint possession of the suit land, rather, plaintiff himself has not come up with specific plea that he is in

possession of any portion of joint land, rather, claim of plaintiff is that he is in exclusive possession of Khasra No. 176 by way of sale deed executed in

his favour, but, as has been taken note herein above, there is no evidence worth credence available on record, suggestive of the fact that plaintiff was

delivered possession of entire area of Khasra No. 176, rather, he has purchased minor share, as detailed above.

Consequently, the petition at hand is dismissed alongwith all pending applications. Interim orders, if any, are vacated. However, it is clarified that

the construction, if any, raised during the pendency of suit, shall abide by final outcome of the suit filed by the plaintiff.