2025:HHC:28911 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 740 of 2024 Decided on: 27.08.2025 Ganesh Chand … Petitioner Versus Sh. Tape Ram and others … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes ___________________________________________________________________ For the petitioner : Mr. H.S. Rangra, Advocate. For the respondents : Mr. Sanjeev Kumar Suri, Advocate for respondents No. 1 and 2. : Respondent No. 3 ex parte. Ajay Mohan Goel, Judge (Oral) By way of this petition filed under Article 227 of the Constitution of India, the petitioner has assailed the judgment passed by the learned Appellate Court in an appeal filed under Order 43, Rule 1 of the Code of Civil Procedure, in terms whereof, the order passed by learned Trial Court, in an application filed under Order 39, Rules 1 and 2 of the Code of Civil Procedure, preferred by the present petitioner, has been set aside by the learned Appellate Court. 2. Brief facts necessary for the adjudication of this petition are that the petitioner/plaintiff has filed a suit for permanent prohibitory and mandatory injunction against the defendants/ 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:28911 respondents inter alia on the ground that the suit property is joint, the defendants are the subsequent purchasers and without the suit land being partitioned, are carrying out construction over best portion of the suit land. 3. Learned Trial Court, in terms of order dated 25.07.2024, passed in application filed under Order 39, Rules 1 and 2 of the Code of Civil Procedure, directed the parties to maintain status-quo qua the nature, possession, construction and interference over the suit land. 4. In terms of the impugned order, learned Appellate Court has set aside the said findings and feeling aggrieved, the petitioner has approached this Court. 5. Learned Counsel for the petitioner argued that the learned Appellate Court erred in not appreciating that as the respondents were subsequent purchasers and they have entered into the foot-steps of earlier co-sharers, from whom they have purchased the property, they have no right to carry out construction over any particular portion of land till the suit land was partitioned by metes and bounds. Learned Counsel referred to the findings returned by learned Appellate Court and submitted that this extremely important aspect of the matter was completely ignored by learned Appellate Court while deciding the appeal. 3 2025:HHC:28911 6. On the other hand, learned Counsel for respondents No. 1 and 2 submitted that the order under challenge suffers from no infirmity because learned Appellate Court rightly held that in case the defendants were deprived of the use of the land, to which they are entitled to being co-owners, then the same shall act to their prejudice. 7. I have heard learned Counsel for the parties and also carefully gone through the orders passed by learned Trial Court as well as learned Appellate Court. 8. It is not in dispute that the suit property is joint and un- partitioned. It is also not in dispute that the respondents herein have subsequently purchased the suit property only in the year 2023 and thereafter, they have started raising construction over portion of the suit property. Learned Trial Court in its order has held that as the factum of joint ownership and possession of the parties over the suit land stood admitted by the parties, including the respondents therein, and as the suit was not partitioned between the parties, therefore, every co-owner was having right over every inch of the suit land and therefore, as the suit land was not partitioned, it was important to preserve the suit land from being interfered by any of the parties to the lis and on these bases, it passed the status-quo order. 4 2025:HHC:28911 9. On the other hand, learned Appellate Court set aside said order by inter alia holding that as the defendants were not having any land except the one they purchased from the co-sharers for the purpose of construction of a residential house, therefore, they were entitled to carry out the construction work as it was not the easementary right of discharge but the prayer in the plaint was for simplicitor for injunction as the suit land was jointly owned and possessed by the parties alongwith other co-sharers. Learned Appellate Court also held that the remedy, if any for the plaintiff, was to seek partition. 10. In the considered view of this Court, the findings returned by the learned Appellate Court are not sustainable in the eyes of law. Learned Appellate Court erred in not appreciating that as the respondents were the subsequent purchasers, who had purchased a share of joint land, then simply on the ground that they were having no other land to carry out construction, no unfettered rights stood created upon the respondents by virtue of purchase of a share in a joint land to carry out construction over the part of land of their choice without the land being partitioned. In fact, the findings returned by the learned Appellate Court are not to the extent that the co-sharers, from whom the present respondents purchased the land, were in possession of a specific portion of joint 5 2025:HHC:28911 land to the exclusion/ouster of the other co-sharers. That being the case, learned Trial Court rightly held that in these circumstances as the possession of one was possession of all, therefore, the character of the suit land should be protected. Accordingly, in light of above observations, this petition is allowed. Order passed by learned Appellate Court dated 04.12.2024, in Civil Misc. Appeal No. 33 of 2024, titled as Tape Ram and others vs. Ganesh Chand, is set aside and the order dated 25.07.2024, passed by learned Trial Court, in CMA No. 212/2024, titled as Ganesh Chand vs. Tape Ram and others, is upheld. Pending miscellaneous application(s), if any also stand disposed of accordingly. (Ajay Mohan Goel) Judge August 27, 2025 (narender)