Dismissed

Partap Singh v. Surinder Kumar and Others

Himachal Pradesh HC17 May 2024CMPMO/190/2024

Case brief

AI extract

What is this about?

Writ petition challenging the dismissal of a prayer for interim injunction in a property dispute. The High Court upheld the lower courts' refusal, noting the plaintiff failed to show irreparable prejudice to co-owners and impliedly acquiesced to their possession.

What did the court decide?

The prayer for interim injunction was rejected by all courts; this petition is dismissed.

Partap Singh Vs Surinder Kumar and Others — Partition | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 190 of 2024 Reserved on 6.5.2024.

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Date of decision: 17.5.2024.

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Pratap Singh ...Petitioner.

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Versus Surender Kumar & others ...Respondents

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Coram:

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The Hon’ble Mr. Justice Satyen Vaidya, Judge .

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Whether approved for reporting?¹ No

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For the petitioner : Sh. Romesh Verma, Sr. Advocate with Mr. Sumit Sharma, Advocate.

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For the respondents : Mr. Sanjeev Kumar Suri, Advocate.

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Satyen Vaidya, Judge:

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Petitioner by way of instant petition has assailed the order dated 21.11.2023, passed by learned Additional District Judge-1 Una, District Una, H.P. in Civil Miscellaneous Appeal No. 46 of 2023, whereby the order passed by the learned Civil Judge, Court No.2Una, District Una, H.P. in CMA No. 404-VI-2023 dated 31.10.2023 has been affirmed.

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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The prayer of the petitioner for interim injunction has been rejected by both the courts.

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Petitioner is original plaintiff in Civil Suit. He has sought a decree of permanent prohibitory injunction against the defendants (respondents herein), to restrain them from taking forcible possession, changing the nature and raising any sort of construction over the suit land comprised in khewat No. 394, khataunis No. 734 to 737, khasra Nos. 2335, 2336, 2337, 2338, 2339 and 2340, situated in Village and Mohal Nangal, Tehsil Ghanari, District Una. In alternative, decree for joint possession of the suit land has also been sought.

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The parties hereinafter shall be referred by the same status which they hold before the learned trial Court. 5. The suit has been filed on the premise that the plaintiff and defendants along with others jointly own and possess the suit land. The defendants already have constructed their house on part of the suit land and they were raising further construction without the consent of the plaintiff. As per plaintiff, defendants were not entitled to raise the construction on the suit land till partition. It has also been averred that some part of the suit land is

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adjacent to the passage and thus is the most valuable portion of suit land from commercial point of view.

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The defendants by way of written statement have admitted the factum of suit land being jointly owned and possessed by the parties as well as others. However, it has been clarified that the share held by plaintiff and the share held by the defendants was owned by a single owner named Sukh Dev Singh. Defendants No. 3 and 4 were sold his ½ share by Sukh Dev Singh by putting the defendants No. 3 and 4 in specific possession of khasra No. 2335. It has further been alleged that the plaintiff was a witness to the sale deed by virtue of which Sukh Dev Singh had sold the land to defendants No. 3 and 4. As per defendants, house was being constructed by defendants No. 3 and 4 on khasra No. 2335, in such a manner that no prejudice was being caused to the rights of other co-sharers, who also were having their separate possessions. Defendants No. 3 and 4 also claimed to have filed partition proceedings.

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In replication filed by the plaintiff, he admitted that he was witness to sale deed executed between Sh. Sukh Dev Singh and defendants No. 3 and 4. He has also admitted that the sale deed in respect of defendants No. 3

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and 4 was executed on 18.9.2019 and thereafter on 1.1.2020, the plaintiff had purchased the remaining share of Sukh Dev Singh to the extent of 00-04-32 hectares. He also did not deny that the share purchased by defendants No. 3 and 4 from Sukh Dev Singh was also equal to the share purchased by the plaintiff.

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Along with the plaint, plaintiff also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for grant of an interim injunction. Having remained unsuccessful in both the Courts, plaintiff has approached this Court by way of the instant petition.

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I have heard the learned counsel for the parties and have also gone through the record carefully. 10. The fact that weighed with learned trial Court while rejecting the prayer for interim injunction was the sale of shares by the same person i.e. Sukh Dev Singh to plaintiff and defendants No. 3 and 4 by putting them in separate possessions. Learned trial Court also considered the effect of sale in favour of defendants No. 3 and 4 being prior in time to conclude that plaintiff was aware about defendants No. 3 and 4 having been put in possession of land comprised in khasra No. 2335.

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Learned trial Court further proceeded on the premise that an injunction against co-owners can be granted only on prima facie proof of such acts by the coowner, which are prejudicial to the interest of other coowners to such an extent that is not capable of being remedied by any means.

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Learned Appellate Court has also found that the plaintiff himself was aware about the sale in favour of defendants No. 3 and 4 by Sukh Dev Singh, whereby defendants No. 3 and 4 were put in specific possession of khasra No. 2335. Learned Appellate Court further found that the plaintiff had also purchased his share in the suit land from the same owner at a subsequent stage and hence, plaintiff was fully aware about the previous possession of defendants No. 3 and 4 over khasra No. 2335. By not raising any objection with respect to handing over of possession of Khasra No. 2335 to defendants 3 and 4 at the time of purchase of share from Sukh Dev Singh by said defendants and also by not seeking any clarification in that regard at the time of purchase of his share from Sukh Dev Singh the plaintiff has impliedly acquiesced in such fact.

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Further, the site plan relied upon by the plaintiff has also been considered by the learned Appellate Court to hold that the apprehension of the plaintiff with respect to user of entire suit land abutting to path by defendants was not made out.

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This Court while exercising jurisdiction under Article 227 of the Constitution will not sit in appeal over the findings of fact. Nothing has been shown at the time of hearing of this petition that the findings so recorded by the learned Court of first instance and in appeal were perverse. The legal position taken into consideration by the learned Appellate Court can also not be faulted with, as one of the co-owners cannot seek injunction against the other coowners as a matter of rule. Prejudice to the rights of coowners which is not capable of being compensated in any terms has to be prima-facie established. According to both the courts, the plaintiff has not been able to show such a prejudice, more particularly when sufficient land was available abutting to path as per the site plan relied upon by the plaintiff himself.

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In light of above discussion, no interference is required with the impugned order. Accordingly, the

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petition is dismissed. No order as to costs. It is clarified that this order or the orders passed by learned Appellate and Trial Court shall not affect the respective rights of the parties in partition proceedings. Pending applications, if any, also stand disposed of.

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17^th May, 2024 (kck)

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(Satyen Vaidya) Judge

Partap Singh v. Surinder Kumar and Others

Case brief

What is this about?

What did the court decide?

Partap Singh v. Surinder Kumar and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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