Ram Singh Vs Varinder Kumar and Others

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.392 & 390 of 2025 Reserved on: 09.03.2026 Decided on: 13.03.2026

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1. CMPMO No.392 of 2025

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	Ram Singh Versus	….Petitioner
	Varinder Kumar & others	...Respondents
2.	CMPMO No.390 of 2025
	Ram Singh Versus	….Petitioner
	Varinder Kumar & others	...Respondents

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Coram

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Hon’ble Mr. Justice Romesh Verma, Judge Whether approved for reporting?

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For the petitioner: Mr. Sunny Modgil, Advocate, in both the petitions. For the respondents: Mr. Ashok Tyagi, Advocate vice Mr. Sanjeev K. Suri, Advocate in both the petitions.

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Romesh Verma, Judge

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The present petitions have arisen out the judgment as passed by learned Additional District Judge-I, Una, District Una, H.P. dated 27.03.2025, whereby the appeals preferred by the defendants/respondents have been allowed and consequently, the application filed by the plaintiff/ petitioner under Order 39 Rules 1 and 2 of CPC has been ordered to be

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dismissed and the application filed by the

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defendants/respondents for the vacation of stay has been allowed by passing a common judgment.

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The judgment as passed by the learned first appellate Court reversed the findings/order as passed by learned Senior Civil Judge, Court No.1, Amb, whereby the application filed by the plaintiff/petitioner under Order 39 Rules 1 and 2 CPC was allowed and the application filed by the defendants/respondents under Order 39 Rule 4 read with Section 151 of CPC for vacation of stay order was rejected.

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Brief facts of the case are that the petitioner/plaintiff filed a suit for permanent prohibitory injunction, restraining the defendants/respondents from raising any sort of construction, changing the nature, alienation or transferring any land more than their share or any specific portion or specific khasra number of the same and also from delivering possession of any specific khasra number over the suit land in the Court of learned Senior Civil Judge, Court No.1, Amb, District Una. It was averred in the plaint that the parties are co-sharers over the suit land and the defendants/respondents, who are very clever, head strong persons of the village, have no respect for law, have started extending illegal threats to change the nature, raise the

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construction of their own in an arbitrary manner to the detriment of the plaintiff/petitioner. Further, it was averred that the defendants/respondents are threatening to deliver the possession of specific portion by boundaries to the third party/purchaser and the defendants/respondents are bent upon to alienate, transfer the best and valuable portion of the suit property in order to harass the plaintiff/petitioner. Further, it was pleaded that cosharers have no right to change the nature of the suit land till the time the joint suit land is partitioned by metes and bounds. Therefore, the suit for permanent prohibitory injunction, restraining the defendants/respondents from raising any kind of construction, changing the nature, alienation or transferring any land exceeding to the share of the defendants over the specific portion was sought from the learned trial Court.

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The suit was contested by the

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defendants/respondents by raising various preliminary objections with respect to maintainability, cause of action, estoppel, suppression etc. in the written statement. On merits, it was averred in the written statement that Khasra Nos.2202 and 2205 are owned by both the parties along with other co-sharers, but the same are in exclusive possession of the defendants/respondents

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through the family settlement between the

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defendants/respondents and their relatives and co-sharers except the plaintiff/petitioner. It was pleaded that the entries of exclusive possession shown in Farad Jamabandi in the Khatoni No.829 are only in favour of the defendants/respondents as well as in the name of their grandmother, namely, Shiv Devi, who has now died.

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The plaintiff/petitioner has no concern with the land measuring 00-09-02 hects in Khatoni No.829, Khasra Nos.2202 and 2205, as mentioned in the plaint and it was pleaded that the defendants/respondents wanted to raise new abadi in Khasra Nos.2202 and 2205 because their old existing Kachi Tin posh abadi having only three rooms is in a dilapidated condition, which cannot be repaired and the same can fall at any time on account of bad weather. The defendants/respondents want to raise new construction in the land mentioned in para No.1 of the plaint which is in their exclusive possession and within their share as per family partition and family settlement, since all the defendants/respondents are married and residing with their families in their old existing abadi and they are having three rooms which too is in a dilapidated condition. Moreover, the defendants/respondents have already constructed two pucca rooms adjacent to their old abadi but there is no enough space for the defendants/respondents to reside with their family members.

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A categorical stand has been taken in para No.1, on merits, of the written statement that the plaintiff/petitioner and his brothers have constructed their pucca residential abadi over the land mentioned in para-1 of the plaint which is in excess of their share/entitlement. Therefore, the plaintiff/petitioner has concealed the material facts from the Court and on that account, he succeeded to get ex parte ad interim injunction from the Court. The defendants prayed for the dismissal of the suit.

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Along with the suit, plaintiff filed an application under Order 39 Rules 1 and 2 CPC for issuance of temporary injunction restraining the defendants/respondents from raising any kind construction, changing the nature, alienation or transferring any land more than their share or any specific portion or specific khasra number of the same and also from delivering possession of any specific khasra number over the suit land.

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Learned trial Court vide its order dated 14.06.2022, passed an ad-interim order in favour of the plaintiff.

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The defendants/respondents filed reply to the stay application and also filed an application under Order 39 Rule 4 read with Section 151 CPC for vacation/modification of the order dated 14.06.2022, whereby ad-interim injunction was granted to the plaintiff/petitioner. Learned trial Court vide its order dated

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02.08.2023, allowed the application filed by the plaintiff/petitioner under Order 39 Rules 1 and 2 CPC and dismissed the application filed by the defendants/respondents under Order 39 Rule 4 read with Section 151 CPC. Learned Senior Civil Judge, Court No.1, Amb, directed the parties to maintain status quo qua nature, possession and construction upon the suit land till disposal of the main case. Consequently, the injunction application filed by the plaintiff/petitioner was allowed and the application for vacation/modification filed by the defendants/respondents was ordered to be dismissed.

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Feeling dissatisfied, the defendants preferred two Miscellaneous Appeal Nos.43/2023 and 5/2024 assailing the grant of injunction to the plaintiff/petitioner and dismissal of the application filed by them for vacation of stay.

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Learned first appellate Court i.e. Additional District Judge-I, District Una, vide its judgment dated 27.03.2025 accepted the appeals preferred by the defendants/respondents and the application filed by the plaintiff/petitioner under Order 39 Rules 1 and 2 CPC was ordered to be dismissed and the application filed by the defendants/respondents under Order 39 Rule 4 read with Section 151 CPC was allowed.

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Still feeling dissatisfied, the plaintiff/petitioner has preferred two petitions under Article 227 of the Constitution of India bearing CMPMO Nos.390 and 392 of 2025.

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It is contended by Mr. Sunny Modgil, learned counsel for the plaintiff/petitioner, that the impugned judgment of dismissal of injunction application filed by the plaintiff and allowing of the application under Order 39 Rule 4 read with Section 151 CPC filed by defendants is erroneous and not sustainable in the eyes of law. Therefore, the impugned judgment is liable to be quashed and set aside and the order passed by learned Senior Civil Judge, Court No.1, Amb, is required to be restored.

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On the other hand, Mr. Ashok Tyagi, learned counsel appearing for the defendants/respondents, has defended the judgment as passed by the learned first appellate Court and submitted that the first appellate Court, after perusing the case file and the documents placed on record, has rightly dismissed the application of the plaintiff/petitioner and allowed the application filed by the defendants/respondents under Order 39 Rule 4 read with Section 151 CPC.

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I have heard learned counsel for the parties and also gone through the record carefully.

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In the present case, primarily the case as set up by the plaintiff/petitioner before the Courts below is that the parties are co-sharers and the suit land is still unpartitioned and till the time the suit land is partitioned by metes and bounds, the defendants/respondents cannot be permitted to raise any construction over the specific and best valuable portion of the suit land with further prayer that the defendants/respondents cannot be permitted to alienate or sell the specific and best valuable portion of the suit land before the partition of the same. The said contention of the plaintiff has been refuted by filing a detailed written statement whereby in para No.1 of the written statement on merits, it has been categorically averred that the defendants/respondents are residing in kacha tin posh abadi having only three rooms. Due to the increase in the family, they require the repair of the old abadi and for that purpose they want to raise new construction in the land mentioned in para No.1 of the plaint which is in their exclusive possession and within their share as per family partition and family settlement. Further, it has been categorically stated that the plaintiff and his brother have constructed their pucca residential abadi in the land mentioned in para No.1 of the plaint, which is in excess of their entitlement. To

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the said averment, there is no specific denial by the plaintiff/petitioner in the replication.

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The Hon’ble Apex Court in number of judgments has held that the relief of injunction is an equitable and discretionary relief, which shall be granted to a person who approaches the Court with clean hands. In the present case, the plaintiff has not approached the Court with clean hands and suppressed the material facts from the Court that he himself has raised the construction over the suit land and now, when the defendants/respondents want to raise the construction, he filed the suit for injunction on the ground that since, the suit land is joint and till the time the same is partitioned, the defendants/respondents cannot raise the construction. The said approach on the part of the plaintiff/petitioner does not entitle him to get the relief of injunction. A person who approaches the Court for grant of discretionary relief must approach the court with clean hands. Once, the plaintiff/petitioner himself has raised the construction over the suit land, therefore, the very character of the joint land is presumed to be severed. Once, the plaintiff has raised the construction over the suit land, he cannot be permitted to raise objection that the suit land is joint and till the time it is

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partitioned, the defendants/respondents be restrained from raising any kind of construction.

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This Hon’ble High Court has repeatedly held that a person, who himself has raised construction over the joint land, cannot prohibit or injunct the other side from raising construction in the garb of the principle relating to joint land/co-sharer.

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Similarly, this Court in Smt. Kalawati vs. Netar

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Singh AIR 2016 HP 85, held as under:-

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“10. It would be evident from the decision, the mere fact that the parties are co-owners and joint owners etc. is not the sole criterion for granting or refusing the injunction, the conduct of the parties too plays an important role and in such like cases, the plaintiff conduct has to be free from blame so as to enable the court to conclude that the plaintiff has approached the Court with clean hands. But here is a case where the petitioner though claims herself to be a joint owner with the respondents after having already raised construction over the suit land seeks an injunction against the respondents without even disclosing this fact.

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11. The injunction being an equitable relief, the person seeking an injunction must come with clean hands. The well-known mechanism that applies in such a matter is "he who seeks equity must do equity". Since the petitioner has admittedly raised construction of her house(s) on a portion of the suit land, she is estopped and has waived her right to assail and question the construction being raised by the respondents. The fact that the petitioner has not approached the court with

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clean hands in itself is sufficient ground for not granting the relief of injunction.”

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19. Similar is the judgment in Raj Kumar versus Rakesh

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Kumar 2022 2 Shim LC 1083 wherein it was observed:

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“5(a) It is not in dispute that the plaintiff had already raised construction over the suit land alleged by him to be the joint land of the parties along with other cosharers. This fact was not disclosed by the plaintiff in the manner it ought to have been stated in the plaint. The plaintiff in a round about manner averred that the defendant was trying to block the air and light of the house of the plaintiff existing over the suit land. Prima facie observation of both the learned courts below that the plaintiff had himself raised construction on the best and most valuable portion of the suit land also assumes significance. It is well settled that when a person seeks equity, he must come with clean hands.

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5(b) It is admitted fact that Sh. Kartar Chand brother of the petitioner/plaintiff and one of the co-sharer had also raised construction over the suit land in the year 2010. It is not the case of the petitioner/plaintiff that he had objected to the construction work done by his brother over the suit land or that the plaintiff had instituted any civil suit for restraining his brother from raising construction over the suit land. It is apparent that the petitioner/plaintiff has selectively chosen the respondent/defendant for filing the suit for injunction. At this stage, it will be relevant to notice the following references:-

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In (2010) 3 Shimla L.C. 205, titled Payar Singh Vs. Narayan Dass and others , the

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respondents pleaded themselves to be in settled separate possession of joint land in family partition over which they were raising construction. They also took up a stand that the petitioner had also constructed his house over the land in his possession. The Court upheld the contentions of the respondents. The following observations made in the judgment are material :

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“12. The respondents in the written statement have specifically pleaded that parties are in separate possession under the 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 in an area which is more than their share. The case of the respondents is that the petitioner has constructed his house on a better portion of the land. The under-construction house of the respondents is away from National Highway 21 whereas the house of the petitioner abuts N. H.21. The respondents have placed on record on the file of revision photographs construction of an under- construction house of the respondents. The photographs indicate the sufficient gap between the already constructed house of the petitioner and the under-construction house of the respondents over which even a slab has been placed. It is the case of the respondents in the written statement that they are in separate possession of the land in the family arrangement. This fact has not been denied

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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 a prima facie case, balance of convenience, and 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.”

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In a judgment dated 03.09.2021, delivered in CMPMO No. 555 of 2018, Ajay Kumar Vs. Ishwar Dutt , it was held that when a co-sharer himself raises a construction over the joint land when a co-sharer does not object to the raising of construction over the joint land by some other co-owners, then, he cannot seek to restrain one specific co-owner from raising construction over part of the suit land, more so, when the construction being raised by that particular coowner is over a portion, which, as per the revenue record, is in his possession along with

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others and when the plaintiff has not been shown in possession of this specific portion of land.

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Placing reliance upon various authorities, defendants in CMPMO No. 77 of 2021, titled Smt. Vyasa Devi Vs. Harish Kumar were permitted to undertake construction inter-alia on the ground that the plaintiff had also carried out construction on the joint land. Material observations made by the Court on facts are as under:-

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“10. The facts involved in the case have been narrated by me hereinabove and the same are not being repeated for the sake of brevity. It is not in dispute that the parties are co- sharers of the suit land but the petitioners herein are recorded to be in possession of the portion of the suit land in issue along with other cosharers. It is further not in dispute that the respondents herein are not recorded to be in possession of the suit land. It is also not in dispute that the respondents herein have also carried out construction activities by raising constructions over the joint land, as is evident from the record. In these circumstances, this Court is of the considered view that the petitioners herein, who besides being the coowners of the suit land are also recorded to be in possession thereof, cannot be estopped from raising construction pending the adjudication of the civil suit. It is settled law that injunction cannot be granted against a co-sharer and further as the respondents herein themselves have constructed their houses over the joint

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suit land, in these circumstances, they cannot be permitted to restrain other co-sharers, i.e. present petitioners, from doing so. The construction, which is being carried out by the petitioners, however obviously shall be subject to the final adjudication of the suit as also partition proceedings, if any, and if the area upon which construction being carried out by the present petitioners ultimately falls in the share of the plaintiffs in partition proceedings, then, of course, consequences will ensue. However, this does not mean that till the suit land is partitioned, the petitioners herein should be restrained from raising construction over the parcel of the suit land in their possession.”

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20. The same is the position in the present case. After raising the construction, the plaintiff/petitioner filed the suit in order to deprive the defendants/respondents from utilizing the suit land. There is a specific averment in the written statement that the defendants/respondents want to raise construction within their share over the suit land. Therefore, the impugned order passed by the learned appellate Court, is legal, valid and sustainable. The mere fact that the land is joint and that the defendants/respondents are raising construction, will not entitle the plaintiff/petitioner to get the relief of injunction as rightly held by learned first appellate Court after relying upon the judgment of

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this Court in case titled as Ashok Kapoor vs. Murtu Devi, 2016(1) Shim. L.C. 207 .

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This Court in RSA No.253 of 2025, titled Baldev Singh vs. Dayal Singh & Anr. decided on 6^th March, 2026, has reiterated the said principle and come to the conclusion that merely on the basis of raising construction by one party does not infer that the same is prejudicial to the other party. In the present case, the plaintiff/petitioner has not been able to establish that, if the construction is raised, in what manner the said construction would be detrimental to his rights. In order to get equitable relief, the plaintiff is required to establish his case beyond reasonable doubt. Merely stating that the land in question is joint and that the defendants/respondents are raising construction to his disadvantage, does not prove his case in any manner. Though, it is the case of the plaintiff that the suit land is joint between the parties, but he has failed to establish how and in what manner the construction, if any, raised by the defendants/respondents is detrimental to his rights. Further, the plaintiff/petitioner has failed to establish by pleading that the act of raising construction, if any, by the defendants/respondents, amounts to his ouster and the same is prejudicial or adverse to the rights of the plaintiff/petitioner. Therefore, merely on the ground that the

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parties are co-sharers and that the construction is being raised on the joint land does not automatically entitle the plaintiff/petitioner to the relief of injunction.

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The judgment in Ashok Kapoor’s case was followed by Hon’ble High Court in Piar Chand and others Versus Sandhya Devi and others 2017 (2) Shim.LC 1040 and it was held after quoting the above para that where the plaintiff had failed to lead evidence to prove that the proposed construction of the defendants will diminish the value or utility of property or the same is detrimental to the interest of other co-owners, including the plaintiff, the suit could not have been decreed.

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23. Similar is the judgment of the Hon’ble High Court in Ramesh Kumar vs. Sheetal and others 2021(1) Shim.LC 377 wherein, it was observed:

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“17. It is quite apparent from the aforesaid exposition of law that a co-owner is not entitled to an injunction restraining another coowner 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. The mere making of construction or improvement in the common property does

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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 coowner 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 an act which is detrimental to his interest.

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24. Therefore, a co-sharer cannot be restrained

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from raising construction over the joint land unless it is shown that such an act would constitute prejudice and the mere raising of construction does not amount to any prejudice as laid down by the Hon’ble High Court.

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The petitioner has approached this Court by filing petitions under Article 227 of the Constitution of India and the scope of interference has been discussed by the Hon’ble Apex Court in Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181 , wherein in paras 15 and 16, it has been held as under:

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“15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a

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court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.1 The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

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16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2 has observed:-

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"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or

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tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

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The learned first Appellate Court has rightly rejected the injunction application and allowed the application for vacation of stay. No other point was raised. Consequently, the present petition being devoid of any merit does not call for any interference and the same is dismissed.

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Any observations made herein are only for the purpose of adjudication of the present petition and the same has no bearing on the merits of the main Civil Suit.

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( Romesh Verma ) Judge

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13^th March, 2026 (vt)

Ram Singh v. Varinder Kumar and Others

Case brief

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Ram Singh v. Varinder Kumar and Others

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