IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 121 of 2025 Reserved on : 23.05.2025. Decided on : 29.05.2025 Kala .…Petitioner. Versus Mahender alias Mahinder Singh and Ors. …Respondents. Coram The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 No For the petitioner : Mr. Maan Singh, Advocate. For the respondents : Mr.Surinder Saklani, Advocate. Satyen Vaidya, Judge (Oral) By way of instant petition, petitioner has assailed order dated 19.03.2025, passed by learned Additional District Judge, Kullu, District Kullu, H.P. in Civil Misc. Appeal No. 12 of 2024, whereby the order dated 25.09.2024, passed by learned Civil 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Neutral Citation No. ( 2025:HHC:16512 ) Judge, Manali, District Kullu, H.P. in C.M.A. No. 202 of 2023 has been set-aside and the application of the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure, has been dismissed. 2. Petitioner herein is plaintiff in Civil Suit titled as Kala Vs. Mahender and another pending on the files of learned Civil Judge, Manali, District Kullu, H.P. Respondents herein are the defendants. For the sake of convenience, parties hereafter shall be referred by the same status as they hold before learned trial court. 3. Plaintiff has filed a suit for permanent prohibitory and mandatory injunctions with respect to the land comprised in Khata No. 78, Khatauni No. 118, Khasra No. 329, measuring 00-04-41 hectares, situated at Muhal Bahanu, Phati Jagatsukh, Kothi Jagatsukh, Tehsil Manali, District Kullu, H.P. (for short the “Suit Land”). A prayer has been made to restrain the defendants from causing unlawful interference and encroachment on the suit land. In alternative, it has been prayed that in 3 Neutral Citation No. ( 2025:HHC:16512 ) case defendants succeeded in raising any construction over the suit land during the pendency of the suit, the same be ordered to be restored to its original position by a decree of mandatory injunction. 4. Plaintiff has claimed that the suit land is jointly owned by her alongwith the defendants and other co-sharers. It has been alleged that in the absence and without the consent of plaintiff, the defendants had started raising construction on the suit land by exceeding their share. As per plaintiff, since the suit land is un-partitioned, the defendants have no right to raise the construction until the shares were separated. 5. Defendants have filed their written statement. It has been submitted that the plaintiff and defendants are in settled possession of their separate shares denoted by Khasra Nos. 329/1 and 329/2. The area of the land in possession of plaintiff is 00-04-41 hectares and the area in possession of defendants is 00–04–42 hectares. As per defendants, they are confining their activities in their own share. 4 Neutral Citation No. ( 2025:HHC:16512 ) Plaintiff has further been accused of having suppressed material facts. It has also been clarified that the total area of land comprised in Khasra No. 329 is 00–40-52 hectares, which is recorded in the joint ownership of various co-owners. Only two plots measuring 00-04–42 hectares and 00-04-41 hectares were lying vacant on spot and rest of the land stood already possessed by other co-sharers, who had raised construction of their residential houses and commercial buildings. In between the plots of the plaintiff and defendants comprised in Khasra Nos. 329/1 and 329/2, there was a huge boulder which extended to the extent of 40% over the plot of defendants and remaining 60% over the plot of plaintiff. Defendants have removed the boulder from their plot by spending huge sum of more than Rs. 10 lacs. They have also erected 22 pillars over their part of land. Defendants further claimed that they had got the plan sanctioned from Town and Country Planning Department for raising construction on their plot. 5 Neutral Citation No. ( 2025:HHC:16512 ) 6. Plaintiff filed replication and denied the existence of separate Khasra Nos. 329/1 and 329/2. Plaintiff, however, admitted that she had purchased the land measuring 00-04-41 hectares vide sale deed No. 378/23 dated 28.04.2023 and the possession had been delivered to her on the same day towards the north of big boulder. As per plaintiff, she had encroached her portion of land. Plaintiff further submitted that defendants have purchased the land in the month of June 2023 without demarcation and in absence of plaintiff they have removed the boundary marks with the intention to encroach upon the share of the plaintiff. The plaintiff also admitted that some of the co-sharers have already constructed the buildings before the purchase of land by the plaintiff and defendants. 7. Alongwith the suit, plaintiff also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, seeking interim injunction. Defendants contested the same. Learned Trial Court allowed the application vide order dated 25.09.2024 6 Neutral Citation No. ( 2025:HHC:16512 ) and directed the parties to maintain status quo with respect to nature, construction and possession of the suit land till the disposal of the suit. 8. Defendants assailed the order passed by learned Trial Court in appeal under Order 43 Rules 1(r) of the Code of Civil Procedure. Learned Additional District Judge, Kullu vide impugned order has allowed the appeal by setting aside the order passed by learned Trial Court. The application of the plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure, has been dismissed. 9. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 10. Learned Trial Court allowed the application for interim injunction on the ground that the co-sharer cannot raise construction or perform any act over the joint land without the consent of other co-sharers. The contention that defendants were raising construction over their allocated share has 7 Neutral Citation No. ( 2025:HHC:16512 ) been held to be an act prejudicial to the rights of plaintiff. 11. Learned Appellate Court, on facts, did not find the case of the plaintiff fit for issuance of interim injunction. Except for bald averments that defendants were raising construction in excess of their share no tangible material was found for prima facie establishment of such a fact. The plea that proposed construction of defendants was on the best valuable portion of the suit land has also been held to be not established. The fact that defendants had sought permission from Town and Country Planning Department for raising construction also weighed with learned Appellate Court. 12. Noticeably, the plaintiff has suppressed material facts while drafting the plaint. An impression has been generated as if suit land measuring 00–04 – 41 hectares only. The record reveals otherwise. The total area of land comprised in Khasra No. 329 is 00- 40-52 hectares. Plaintiff also withheld the factum of her possession on specific portion of suit land. This 8 Neutral Citation No. ( 2025:HHC:16512 ) fact she had to admit while responding to the averments made in the written statement. Further, the factual position became clearer when from the contents of written statement and replication it transpired that all other co-sharers in the suit land were holding their specific separate possessions and had already raised their respective constructions. 13. Thus, the plaintiff cannot be said to have acted bonafide. It is fundamental that a person seeking equity must do equity. In order to seek discretionary relief, one has to approach the Court with clean hands. No one can be allowed to take benefit of his/her own wrong. 14. It can be easily inferred from material on record that major portion of joint land measuring 00– 40-52 has been in settled separate possession of different co-sharers. The plots of land purchased by plaintiff and defendants are only small fraction of entire Khasra number 329. Sale deed of the plaintiff is prior in time as compared to that of the defendants. As per sale deed plaintiff has been allotted a specific 9 Neutral Citation No. ( 2025:HHC:16512 ) portion. That means the defendants have been left with the remaining portion. In such circumstances, the plaintiff had to show that there was any real intrusion or attempt by the defendants in the land in her possession. The findings by learned Appellate Court that except for bald assertions no material was on record to prime facie establish any violation of the rights of plaintiff cannot be faulted. 15. Learned counsel for the plaintiff tried to persuade this Court by referring to certain documents, according to which, the permission earlier granted to defendants by Town and Country Planning authorities has been revoked. However, the said fact even if assumed to be correct, cannot be used by the plaintiff in her favour. It is not the pleaded case of plaintiff that the construction raised by defendants was without sanction of competent authority and further she was suffering any harm to her rights by such construction. 16. In light of above discussion, I find no merit in the petition and the same is dismissed. 10 Neutral Citation No. ( 2025:HHC:16512 ) 17. It is made clear that the observations made hereinabove shall have no bearings on the merit of the case and shall be construed for the disposal of the present petition only. 18. The petition is, accordingly, disposed of, so also the pending miscellaneous application, if any. (Satyen Vaidya) 29th May, 2025 Judge (sushma)