Sher Singh Vs Rakesh Chand and Ors.

The present petition arises out of the judgment as passed by the learned Additional District Judge Ghumarwin, District Bilaspur dated 14.11.2024, whereby an appeal preferred by the present petitioner was partly allowed and the order as passed by the learned Civil Judge, Court No.2, Ghumarwin dated 01.10.2024 was set-aside.

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Brief facts of the case are that the present petitioner/plaintiff filed a suit for permanent prohibitory injunction restraining the defendants/respondents from digging the suit land, raising any construction or occupying

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

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valuable and specific portion of the suit land, cutting and removing the trees over the land measuring 5-1 bighas comprised in Khasra No. 43, Khata Khatoni No.8/11, situated in Village, Khansra, Pargna Sariun, Tehsil Ghumarwin, District Bilaspur,H.P.

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It has been averred in the plaint that the parties are co-sharers and in joint possession of the suit land. It has been averred that the parties had earlier constructed residential houses over the suit land and now the plaintiff had applied for partition before the revenue authorities. It has further been averred that during the partition proceedings at the time of preparation of ‘Fard Kabja’, it was found that defendants are having possession of more land, which is exceeding to their share and when this fact came to the knowledge of the defendants, they started raising forcible construction in order to grab the excess share and valuable and specific portion of the suit land. It was further averred that the defendants are threatening to forcibly raise the construction by dispossessing the plaintiff from his share in possession of the suit land with malafide intention and to prejudice the rights of the plaintiff. Therefore, decree for permanent prohibitory injunction and

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alternative decree for joint possession was sought by the plaintiff /petitioner from the learned trial Court .

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Along with the suit, an application under Order 39 Rule 1 and 2 C.P.C was also filed by the plaintiff/petitioner seeking prayer that the non applicant/defendant be restrained from digging the land and raising construction over valuable and the specific portion of the suit land by cutting and removing the trees and changing the nature of the suit land during the pendency of the suit.

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The suit was contested by the

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respondent/defendant by raising preliminary objections with respect to maintainability, cause of action, locus standi and estoppel etc. On merits, it was admitted that the parties are cosharers. It was averred that the plaintiff himself has constructed his residential house and the old house of the defendants is in dilapidated condition and it can fall at any time. The plaintiff had about 0-6 bighas more land than to his share. All the averments and contentions made in the plaint were refuted, and the defendants sought dismissal of the suit.

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The defendants filed reply to the application filed by the plaintiff under the provisions of Order 39 Rules 1 and 2 C.P.C and sought the dismissal of the application.

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The learned trial Court vide its order dated 01.10.2024 dismissed the application as filed by the plaintiff/petitioner.

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Feeling dissatisfied, the plaintiff/petitioner preferred an application under the provisions of Order 43 Rule 1 (r)of C .P.C before the Additional District Judge, Ghumarwin on 05.10.2023. The First Appellate Court vide its judgment dated 14.11.2024 partly accepted the appeal, whereby the present respondents were allowed to reconstruct the old house and also to complete new construction over an area measuring 32’.101/2’’x 34’.-1/2” feet as shown in site plan, but it was further ordered that they shall not extend the construction beyond that and they shall maintain status quo qua nature and possession of the remaining portion of the suit land till final disposal of the main suit or till partition by metes and bounds

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Still feeling aggrieved, the plaintiff/petitioner has approached this Court. It is contended by Mr. Kamal Sharma, Advocate that the impugned orders as passed by the Court below are erroneous and liable to be quashed and set aside. He further submits that admittedly parties are co-sharers, therefore, the defendants/respondents cannot be permitted to utilize the best and the valuable portion of the suit land to the

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detriment of the plaintiff. He further submits that the defendant has grabed excess portion of the suit land, therefore, cannot be permitted to raise construction during the pendency of the suit, that too when the plaintiff has approached the learned authorities for the partition of the total suit land.

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On the other hand Mr. Hamender Singh Chandel, Advocate has defended the impugned orders as passed by the Courts below and he has submitted that there is no error in the orders as passed by the Courts below and the scope of interference by this Court that too in a petition under Article 227 of the Constitution of India is very limited.

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He further submits that the Courts below have rightly appreciated the point in controversy, therefore, no interference of any kind is required in the present case.

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I have heard the learned counsel for the parties and have gone through the record of the case file carefully.

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Admitted facts of the case are that the extent of the total suit land comes to 5-1 bighas. As per ‘Fard Kabja’, the plaintiff is in possession of 2-10 bighas of the suit land, whereas the defendants are in possession of 2-11 bighas of the land.

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It is also admitted by the parties that the plaintiff has raised new construction over the suit land. It is contended by the learned counsel for the respondents that when they started repairing the old house and started raising construction over an area measuring 32’.10-1/2’’x 34’.-1/2” feet , the plaintiff started threatening to stop their construction by taking the plea of partition.

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The case file reveals that the contention of the learned counsel for the petitioner that the respondents/defendants are in possession of excess of the share measuring 0-6 bighas is factually incorrect. As rightly pointed out by the learned counsel for the respondents that the documents which have been placed on record pertains to some other missal. The documents on which the petitioner is relying which has been appended with the present petition is not applicable in the present case. Therefore, the contention as raised by the learned counsel for the petitioner is dehors the record and liable to be rejected.

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Once the petitioner/plaintiff himself has raised the construction of new house, then under such circumstances, he cannot be permitted to injunct the other co-sharer from raising fresh construction by taking the plea of joint land. The legal

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proposition of law on this point is dealt by this court in CMPMO No. 389 of 2023, titled as Bir Singh vs. Tirath Raj & another ,

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decided on 29.12.2025 , wherein it was observed:-

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“Similar is the judgment passed in Smt. Kalawati vs. Netar Singh AIR 2016 HP 85 wherein it was held:

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“10. It would be evident from the decision, the mere fact that the parties are coowners 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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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 clean hands in itself is sufficient ground for not granting the relief of injunction.

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Similar is the judgment in Raj Kumar versus Rakesh Kumar 2022 2 ShimLC 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 respondents pleaded themselves to be in settled separate possession of joint

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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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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 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

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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 cosharer 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 co-owner is over a portion, which, as per the revenue record, is in his possession along with others and when the plaintiff has not been shown in possession of this specific portion of land.”

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The Court below has rightly come to the conclusion that respondents/defendants are carrying out repair of the old house which is in their possession and further they are raising construction over the area of 32’.10-1/2’’x 34’.-1/2” feet. The shares of the parties can be deciphered from the fard kabja

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which is part of the case file and it reveals that the shares of both the parties are same.

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The plaintiff/petitioner has failed to prove and divulge from the case file that the defendants have raised construction over best and valuable portion of the suit land in excess of their share.

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In order to get injunction order, the plaintiff is required to approach the Court with clean hands, he has suppressed this material fact that he himself has raised the construction. Once plaintiff has himself raised fresh construction over the suit land, in that event, he cannot be permitted to injunct the defendants that too in the absence of any pleadings that they are raising the construction over and above their share. Except the bold statement of the plaintiff, nothing has been placed on record that defendants are exceeding to their share, therefore, Courts below have rightly passed the orders.

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The perusal of the judgment as passed by the First Appellate Court, shows that it has taken care of the contentions of the petitioner, whereby the learned First Appellate Court has permitted the present respondent to allow and to reconstruct the old house and also to complete new construction over the

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area measuring 32’.10-1/2’’x 34’.-1/2” feet as shown in the site plan and further it has been ordered that the defendants shall not extend the construction beyond that and they shall maintain status quo qua nature and possession of the remaining portion of the suit land. Meaning thereby, the respondents have been restrained from extending their construction over and above the area which, has been specified in the final order (para 28 of the impugned judgment).

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The Courts below have rightly considered the controversy in question, and there is no jurisdictional error by them. The Hon’ble Apex Court has laid down the parameters while dealing the petition under Article 227 of the Constitution of India, whereby it has been held that the High Court shall not act as the First Appellate Court while dealing with the provisions under Article 227 of the Constitution of India.

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22. The Hon’ble Supreme Court in M/S GARMENT CRAFT Vs. PRAKASH CHAND GOEL, (2022) 4 SCC 181, has held that the High Court while exercising Supervisory Jurisdiction will not act as a Court of First Appeal to re-appreciate, reweigh the evidence on facts upon which the determination under challenge is based. The Hon’ble Supreme Court has held as follows:-

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“15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is

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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 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,1Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 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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Consequently, the present petition being devoid of any merit, deserves to be dismissed and is accordingly dismissed.

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Pending application(s), if any, also stands disposed off.

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(Romesh Verma), Judge

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06.04.2026 (veena)

Sher Singh v. Rakesh Chand and Ors.

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Sher Singh v. Rakesh Chand and Ors.

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