CMPMO/567/2026 on 13 October 2026

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 567 of 2026 Decided on: 13.10.2026 Ram Kumar

… Petitioner Versus Usha Rani

…Respondent _____________________________ ______________

Coram

Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ___________________________________________________ For the Petitioners: Mr. Hemant Kumar Thakur, Advocate and Mr. Binat Sharma, Advocate (through V.C.). For the Respondents : Mr. Sunil Mohan Goel, Senior Advocate, assisted by Mr. Vipul Sharda, Advocate Virender Singh, Judge

(oral)

Petitioner Ram Kumar has filed the present petition, under Article 227 of the Constitution of India, against the order dated 09.09.2026, passed by the Court of learned District Judge, Una, (hereinafter referred to as ‘the Appellate Court’), in Civil Misc. Appeal No. 31 of 2026, whereby, the learned Appellate Court has dismissed the appeal, preferred by the petitioner, under

Order 43 Rule 1(r) of CPC, against the order dated 30.04.2026, passed by the Court of learned Civil Judge, Court No. III, Una, H.P., (hereinafter referred to as ‘the trial Court’), in CMA No. 501 of 2026, titled as, ‘Ram Kumar versus Usha Rani’. Vide order dated 30.04.2026, the application, under Order 39 Rules 1 and 2 CPC, was ordered to be dismissed.

2. Parties to the lis, are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.

3. Brief facts, leading to filing of the present petition, before this Court, as borne out from the documents, annexed with the petition, may be summed up, as under: Plaintiff Ram Kumar has filed the suit for permanent prohibitory injunction, restraining the defendant from raising any sort of construction, over the vacant portion of the land, measuring 00-20-48 hectares, comprising in Khasra No.612 min, Khatauni No. 719 min, bearing khasra Nos. 1530, 1531, as entered in Jamabandi for the year 2022-23, situated in

Mohal Manuwal, Tehsil Haroli, District Una, HP (hereinafter referred as ‘the suit land’), till final partition; and in the alternative, he has sought the relief of mandatory injunction, directing the defendant to demolish the construction, if the defendant succeeds in raising the same, over any part of the suit land, during the pendency of the suit. 3.1 The said suit has been filed on the ground that the plaintiff and defendant are joint owners in possession of the suit land. According to the plaintiff, suit land is a valuable piece of land and situated amidst the abadies and its value is in lakhs of Rupees, per marla. Major portion of the suit land is stated to be lying vacant on the spot. The suit land has not been partitioned, among the co-sharers, by metes and bounds. Alleging that the defendant is having the back of number of persons, it has been alleged that she has threatened to raise construction, over the suit land, more than her entitlement.

4. Along with the suit, application under Order 39 Rules 1 and 2 of CPC, has been filed, restraining the defendant from raising the construction over the vacant portion of the suit land.

5. When put to notice, the suit has been contested by the defendant, by filing the written statement, by taking the preliminary objections that the suit is not maintainable, as the parties to the lis are in separate possession of the suit land, and the plaintiff has already covered his share; plaintiff has no cause of action; the suit is defective; the relief of permanent injunction is not liable to be given, in view of Section 41(i) of the Specific Relief Act; suit is barred by Section 41(h) of the Specific Relief Act; and the Civil Court has no jurisdiction to try and decide the suit. 5.1 On merit, the jointness of the property, has not been disputed and it has also been admitted that the suit land has not been partitioned, by metes and bounds, but, according to the defendant, parties to the lis, are in separate possession, over the suit land, as per their shares. Other contents of the plaint have been disputed.

5.2 According to the defendant, her old house which was having 3 bedrooms, one hall, kitchen and toilets, has become unfit for human habitation, and the same requires emergency renovation. Due to this reason, defendant had demolished her old house in the month of January, 2026 with a view to raise building over the same area of land. 5.3 On the basis of similar grounds, application under Order 39 Rules 1 and 2 of CPC, has also been contested.

6. The learned trial Court, after hearing learned counsel for the parties, has dismissed the application, under Order 39 Rules 1 and 2 of the CPC.

7. Feeling aggrieved from the said Order, the plaintiff has approached the learned Appellate Court. His appeal has also met with the same fate, vide order dated 9.9.2026.

8. Now, the plaintiff is before this Court, by way of present petition, under Article 227 of the Constitution of India.

9. Heard.

10. The learned Appellate Court, while dismissing the application, under Order 39 Rules 1 and 2 of the CPC has relied upon the decision of this Court, in a case titled as, ‘Ashok Kapoor versus Murtu Devi, reported in 2016(1) Shimla Law Cases 207. Relevant paragraph-46 of the judgment is reproduced as under:

46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:-

(i) a co-owner is not entitled to an injunction restraining another co-owner 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 co-owner out of possession. or (ii) The mere making of construction 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.

(v) before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with.

(vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience and in the exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience."

11. The plaintiff is before this Court, under Article 227 of the Constitution of India, where the scope of interference, is limited only to correct the jurisdictional error.

12. The parties to the lis are joint owners in possession of the suit property. Although, it has been alleged by the defendant that they are in separate possession, but, it has been admitted that the suit land has yet not been partitioned, by metes and bounds.

13. The relief of injunction is equitable relief and when, a person is approaching the Court for an equitable relief, he must do equity. In the present case, pleadings of the plaintiff were totally silent about any efforts made by him to get the suit land partitioned, by filing the application for partition, before the revenue authorities, or seeking the relief of partition, before the Civil Court.

14. The pleadings of the plaintiff are totally silent about the fact whether the proposed construction, raised by the defendant, would amount to ouster. In such situation, when the steps for getting the suit land partitioned, have not been taken by the plaintiff, then, the learned trial Court has rightly declined the relief of injunction to him, as the defendant cannot be vexed twice, firstly in the suit for permanent prohibitory injunction; and secondly, in the partition proceedings.

15. The learned Counsel appearing for the plaintiff could not point out any jurisdictional error, in the order passed by the learned trial Court, which has been upheld by the learned Appellate Court, as such, the same does not warrant any interference by this Court, under Article 227 of the Constitution of India.

16. In view of the above facts, the present petition is dismissed.

17. The pending application(s), if any, are also disposed of.

18. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present application. (Virender Singh) 13.10.2026 Judge Kalpana