IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.M.P.M.O No. 193/2010 Reserved on:31.3.2011 Date of decision: 13th April, 2011 ------------------------------------------------- Kalawati & another Petitioners Versus Sudhir Chand & others Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting1? No. For the petitioners: Mr.Khoob Ram Thakur Advocate. For the respondents: Mr. V.S Chauhan, counsel for respondents No. 1,3 and 4. Per Deepak Gupta.J. This petition is directed against the order dated 28-12- 2009 passed by the learned Additional District Judge, Solan whereby he dismissed the appeal filed by the present petitioner (hereinafter referred to as the ‘defendants’) and affirmed the stay order passed by the learned trial Court. 2. Briefly stated, the facts of the case are that the plaintiffs filed a suit for declaration that they are in possession of the house comprised in Khasra No. 77. They also alleged that they are joint owners in possession of the suit land comprised in Khasra No. 85 measuring 6 Biswas and also joint owners of old double storeyed residential house consisting of two rooms and a closed verandah in the ground floor and similar accommodation in the upper storey. According to the plaintiffs, he and his brothers are in Whether the reporters of Local Papers may be allowed to see the Judgment? Yes possession of one room in the upper storey and one room in the ground floor including the portion of verandah in both storeys of his house situated in Khasra No. 77, total land measuring 4 Bighas 7 Biswas. The plaintiffs claimed that the defendants demolished two rooms in the ground floor and similar accommodation in the first floor in this joint ancestral house and have started reconstructing the same and they filed the suit praying that defendants be restrained from raising construction in Khasra No. 85 measuring 6 Biswas and claimed that the defendants had demolished the old house without leaving 4 feet width space for ingress or outgress to the plaintiffs. Along with this suit, an application under Order 39 Rule 1 & 2 was also filed for grant of stay, in which same prayer was made. 3. The defendants contested the suit and according to them, they have not raised construction on any portion of Khasra No. 85 measuring 1 Biswa falling in the share of the plaintiffs. They further contended that the construction of almost 3 storeys was complete and suit was filed at a belated stage. They also denied that there was any path existing over there. According to the defendants, the plaintiffs had also demolished the old portion of their house and made a new house on the spot and, therefore, they cannot now claim that the defendants be restrained from raising any construction. 4. Both the Courts below held in favour of the plaintiffs. Sh.Khoob Ram, learned counsel for the petitioners contended that the Courts below have not even cared to read the prayer made in the application. He submits that as far as the old house is concerned, the only prayer made was that defendants be restrained from reconstructing the house unless they leave a passage of 4 feet width. According to him, there was no prayer for complete ban on the construction. He also submits that the share of the plaintiffs in Khasra No. 85 is very small and the construction being done by the defendants in a very small portion falling to their share and no prejudice is going to be caused to the plaintiffs in case the construction is completed at the risk and cost of the defendants. It was lastly contended that the suit was filed at a belated stage when the defendants had already spent a huge amount and raised construction of 3 storeys and have laid linters on three storeys and, therefore, no stay should have been granted. 5. On the other hand Mr.V.S Chauhan learned counsel for respondents submits that since the land is joint in between the parties the Courts below are justified in issuing the stay order. 6. Sh. Khoob Ram Thakur, Advocate has relied upon the case reported in Bachan Singh Vs. Swaran Singh, AIR 2001 Punjab and Haryana 112 in which the Court held as follows:- “18. On a consideration of the judicial pronouncements on the subject, we are of the opinion that: (i) a co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of 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. 19. In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co-owner.” 7. In Mandali Ranganna & others v. T.Ramachandra & others AIR 2008 SC 2291, the Apex Court held that besides considering the basic elements, prima-facie case, balance of convenience, irreparable harm and injury the Court must also take into consideration. The conduct of a party who kept quiet for a long time and allowed the other party to deal exclusively with the property, ordinarily would not entitle that party to an order of injunction. In the present case, from a perusal of material placed on record and the photographs placed on the record of the trial Court by the plaintiffs, show that by the time suit had been filed, the defendants had already constructed 3 storeyed structure. The prayer made in the suit, in respect of reconstruction of old structure was that the defendants be restrained from raising such construction unless they leave a passage of 4 feet width. Both the Courts below have not at all gone into this aspect of the matter. So far as first appellate Court is concerned, I am constrained to observe that it just dittoed the findings of learned trial Court without going into the merits of the case. 6. Keeping in view the fact that substantial construction had been raised even before the suit had been filed and defendants have collected huge amount of material on the spot, in my view no irreparable harm and injury will be caused to the plaintiffs in case such construction is allowed to go on. On the other hand, if the defendants are permitted to continue to raise the construction, the interest of plaintiffs can be protected by making it clear that the construction raised shall be subject to the final decision of the suit and in case the suit is decreed in favour of the plaintiffs then defendants will either demolish the portion in excess of their share or shall hand over the same to the plaintiffs without asking for any compensation for building costs. 7. The petition is accordingly allowed. The order of both the Courts below are set aside. It is made clear that any construction raised by the petitioner shall be at their own risk and costs and subject to the final result of litigation. In case petitioners are found to be in possession of land in excess of their share they shall demolish the building at their own risk and costs or hand over the same to the plaintiffs without claiming the cost of construction. The petition is disposed of in the aforesaid terms. No order as to costs. 13th April, 2011 (Deepak Gupta),J. (priti)