IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 79 of 2009 Reserved on : 29.3.2010. Date of Decision: 5.4.2010 Payar Singh …Petitioner Versus Narayan Dass and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. Ashok Sharma, Advocate. For the Respondents : Mr. N.K.Sood, Advocate. Kuldip Singh , Judge The plaintiff has come in revision against judgment dated 29.5.2009 passed by the learned District Judge, Mandi in Civil Misc. Application No. 11 of 2009 allowing the appeal against the order dated 4.3.2009 passed by the learned Civil Judge (Junior Division) Court No.II, Sundernagar in CMA No. 169 of 2008. 2. The facts, in brief, are that the petitioner has filed a suit for permanent prohibitory and mandatory injunction against the respondents regarding the land more specifically described in the plaint. It is the case of the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 petitioner that suit land is un-partitioned between the parties and the same is situated on the right side of the National Highway (NH) 21. 3. The further case of the petitioner is that his father Devi Ram was entered as a non occupancy tenant alongwith the respondents of the suit land, Devi Ram had died on 23.10.2005 and petitioner is the only legal heir of late Devi Ram on the basis of Will dated 23.12.2000 of Devi Ram. Devi Ram and respondents became owners under the H.P.Tenancy and Land Reforms Act. The suit land is a valuable piece of land, a co-owner should not be allowed to raise construction till the suit land is partitioned. The petitioner has constructed his house over suit land and vacant portion is being used as courtyard and for other functions such as marriage ceremonies etc. The petitioner is also using the suit land as a passage. The respondents started digging on the suit land on 11.11.2008 without the permission of the petitioner and other persons and in these circumstances, the suit was filed. 4. The suit was contested by the respondents by filing a written statement in which preliminary objection has been taken that the petitioner is not entitled to discretionary and equitable relief of injunction as he himself has raised construction on a valuable portion of the suit land towards the road side front in gross violation of the decree passed in Civil Suit No. 205/83 decided on 27.8.1988 titled as Narain Dass and others Vs. Devi Ram and others. The petitioner is 3 thus estopped from his own acts and conduct to file the suit. On merits, it has been submitted that parties are in separate possession under family arrangement. The petitioner has already occupied the best and valuable portion of the suit land including land comprised in khasra No. 376. The respondents are raising construction on a parcel of the suit land which is away from N.H.21 after leaving two karm space between the house of the petitioner. The petitioner can be adequately compensated at the time of the partition. The courtyard of the petitioner is towards the front and no construction is being raised on the front side of the house of the petitioner. The house of the petitioner is on khasra No. 374/1 and the proposed construction of the respondents is on Khasra No. 374/3. The construction was started by the respondents with the consent of the petitioner and prior to the institution of the suit they had completed the plinth level. The suit has been filed to harass the respondents. 5. The petitioner has filed an application under Order 39 Rules 1 & 2 read with Section 151 C.P.C. On 25.11.2008, the learned Civil Judge ordered status quo as to the nature and possession of the suit land. The same order was repeated on 17.1.2009. On 4.3.2009, the learned Civil Judge allowed the application and restrained the respondents from raising any further construction over the suit land till the conflicting interests of the parties are not adjudicated by the Court on merit. The decision dated 4.3.2009 was assailed in 4 appeal which was accepted by the learned District Judge on 29.5.2009 and held that the petitioner has not been able to make out all ingredients to grant temporary injunction. The petitioner has thus filed the present revision against the judgment dated 29.5.2009. 6. I have heard the learned counsel for the parties and have also gone through the record. Mr. Ashok Sharma, learned counsel for the petitioner has submitted that it has been established on record that parties are joint and it is settled proposition of law that one co-owner cannot raise construction on the joint land without the consent of other co-owners till the land is partitioned. The learned Civil Judge has rightly appreciated the material on record and allowed the application under Order 39 Rules 1 & 2 read with Section 151 C.P.C. filed by the petitioner. But the learned District Judge, has not properly appreciated the legal position with respect to joint land and has erred in allowing the appeal of the respondents vide impugned judgment dated 29.5.2009. He has submitted that it is in the interest of justice that the respondents may be restrained from raising further construction on the suit land. 7. The learned counsel appearing on behalf of the respondents has supported the impugned judgment. He has submitted that proposition that under no circumstance, a co- owner can raise construction on the joint land is not absolute. In the present case, the parties are in separate possession 5 under family arrangement. The petitioner has already constructed his house. The equitable relief of injunction is not available to petitioner in interim form so as to restrain the respondents to raise construction on the suit land. It has been submitted that respondents have already raised the construction and even the slab has been put on the under construction house. He has submitted that only finishing by way of plastering inside and outside the walls, putting fixtures in the already constructed house are left. The respondents also intend to raise suitable protection over the stairs opening on the roof of the already constructed house so as to prevent flow of rain water inside the house. The learned counsel for the respondents has also submitted that the learned District Judge after due appreciation of material on record has allowed the appeal. The petitioner has failed to make out a case of jurisdictional error committed by the learned District Judge, therefore, the petitioner is not entitled to interim relief in revision. He has ultimately submitted that prima-facie case, balance of convenience and irreparable loss are in favour of the respondents. 8. The learned counsel for the petitioner has vehemently stressed that since the suit land is joint, therefore, the petitioner is entitled to interim injunction. He has relied Nagesh Kumar vs. Kewal Krishan AIR 2000 H.P. 116. In that case, the High Court did not accept the contention of the defendant that he has purchased a specific portion of the suit 6 land. The suit land was otherwise found joint land and, therefore, restrained the defendant from raising construction over the suit land till the disposal of the suit. 9. The learned counsel for the petitioner has also relied Harish Chander Verma Vs. Kayastha Pathshala Trust and Ors. JT 1988 (1) S.C. 625. In that case, a decree of permanent prohibitory injunction was passed and in appeal against the decree, the High Court had permitted the defendant/respondent to raise construction subject to condition that in the event of the decree being affirmed the construction shall be pulled down. The Supreme Court has held that on the face of a decree for permanent injunction, it is not appropriate for the appellate court to allow it to be nullified before the appeal is disposed of. In the present case, there is no decree of permanent prohibitory injunction against respondents. 10. Parduman Singh and another Vs. Narain Singh and another 1991 (2) S.L.C. 215 has also been relied by the learned counsel for the petitioner in support of his contention. In that case the District Judge has disposed of the appeal on the concession of the learned counsel for the parties. The learned counsel for the respondent/defendant had undertaken that in case it was ultimately found that the suit on which the defendant/appellant were raising construction was in excess of their share in the land along National Highway, they would demolish the structure in excess of their share. It was held 7 the most important factor is prima-facie case that the land in dispute is joint between the parties and the defendants have no right to make construction over it to the disadvantage of the plaintiff. The High Court has held that it is not proper for the court to confirm the judgment in view of the law laid down by the Supreme Court in Harish Chander Verma (Supra). In Parduman Singh (supra) the question whether a co-sharer who is in exclusive possession on joint land to the extent of his share with the consent of other co-sharers is entitled to raise construction or not on that portion of the land was not decided by the Court. 11. In Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram AIR 1961 Punjab 528, it has been held that 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 anyone to disturb the arrangement without the consent of others except by filing of a suit for partition. 12. The respondents in the written statement have specifically pleaded that parties are in separate possession under family arrangement. The petitioner has also constructed his house on the joint land. It is not the stand of the petitioner that respondents are raising construction on an area which is more than their share. The case of the respondents is that petitioner has constructed his house on a better portion of the land. The under construction house of the respondents is away from the National Highway 21 whereas the house of the 8 petitioner abuts N.H. 21. The respondents have placed on record on the file of revision photographs of under construction house of the respondents. The photographs indicate sufficient gap between the already constructed house of petitioner and under construction house of the respondents over which even slab has been placed. It is the case of the respondents in written statement that they are in separate possession of the land in family arrangement. This fact has not been denied by filing replication. The respondents are claiming possession over the suit land under family arrangement i.e. with the consent of the petitioner over which they are raising construction. The respondents have thus established prima facie case, balance of convenience, irreparable loss in their favour. In these circumstances, no fault can be found with the impugned judgment. In revision the scope is limited as held in The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another Vs. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, AIR 1973 SC 76. The suit is for permanent prohibitory and mandatory injunction. The rights of the parties will be decided in the suit. It has not been established that the view taken by the learned District Judge does not emerge from the material on record. 13. No other point was urged. 14. The result of the above discussion, revision fails and is accordingly dismissed. The observations made in the 9 judgment are for the disposal of the revision petition only at the interim relief stage and shall not be construed as expression of opinion on the merits of the case and the court below shall decide the suit on merits strictly in accordance with law. The record of the court below be sent back immediately. The parties through their counsel are directed to appear in the trial Court on 26.4.2010. Interim order dated 26.6.2009 stands vacated. No costs. April 5, 2010. ( Kuldip Singh ) (GR) Judge.