( 2026:HHC:31513 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.151 of 2026 Reserved on: 22.07.2026 Decided on: 30.07.2026 Uploaded on : 30.07.2026 Subhash Chander …Petitioner Versus Vinod Kumar …Respondent Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes. _______________________________________________________________ For the petitioner : Mr. Digvijay Singh Bisht, Advocate. For the respondent : Mr. Somesh Sharma, Advocate. __________________________________________________________ Virender Singh, Judge Petitioner-Subhash Chander, has filed the present petition, under Article 227 of the Constitution of India, against the order dated 17.01.2026, passed by the Court of learned Additional District Judge (C.B.I. Court), Shimla, (hereinafter referred to as the First Appellate Court), in Civil Miscellaneous Appeal No.25-S/14 of 2025, titled as Vinod Kumar versus Subhash Chander. 2. By way of order dated 17.01.2026, the learned First Appellate Court, has allowed the appeal preferred by the respondent, against the order dated 19.11.2025, 1 Whether Reporters of local papers may be allowed to see the judgment? 2 ( 2026:HHC:31513 passed by the learned Civil Judge, Court No.II, Shimla, District Shimla, H.P ( hereinafter referred to as the trial Court), passed in application, under Order 39, Rules 1 and 2 CPC, filed in Civil Suit No.154 of 2025, titled as Vinod Kumar versus Subhash Chander. 3. By way of order dated 19.11.2025, the learned trial Court has dismissed the application, under Order 39, Rules 1 and 2 CPC, filed by the respondent, in the above titled case. 4. For the sake of convenience, the parties to the present lis, are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court. 5. Factual position, as emerges from the documents annexed, with the petition, may be summed up, as under:- 5.1. Plaintiff-Vinod Kumar, has filed the suit for permanent prohibitory injunction, against defendant- Subhash Chander, on the ground, that they are co-owner of the land bearing Khata-Khatauni No.4/5, Khasra Nos.199, 200, 201, kita-3, measuring Jajhot, Tehsil Shimla Rural, District Shimla, H.P. (hereinafter referred to as the suit land). 3 ( 2026:HHC:31513 5.2. It is the case of the plaintiff that the suit land is joint between the parties and has not been partitioned, as per law. It is the further case of the plaintiff that the defendant has no legal right to raise construction, on joint land and to change the nature of suit land, without the consent of the plaintiff. 5.3. According to him, the defendant, without the consent of the plaintiff is trying to raise construction, on vacant portion of the joint land and is trying to grab more and more portion of the suit land. 5.4. On the basis of the above facts, the following relief has been sought by the plaintiff: “It is therefore, respectfully prayed that a decree for permanent prohibitory injunction restraining the defendant from causing damage and changing the nature of the suit land, from dispossessing the plaintiff from suit land, raising any new construction on any specific portion of the suit land, land comprised in Khata/Khatauni No.4/5, Khasra Nos.199, 200, 201, Kita-3, measuring 484-01 Square meters, situated in Mohal Kasumpti Jajhot, Tehsil Shimla Rural, District Shimla, H.P. in any manner whatsoever, either by themselves or through his agents, servants, assignees, family members, contractors, whosoever, may kindly be passed in favour of the plaintiff and against the defendant alongwith the cost of suit, in the interest of justice. A decree of mandatory injunction is to be passed directing the defendant to demolish illegal construction raised in the suit land with permission of M.C. Shimla.” 4 ( 2026:HHC:31513 5.5. Along with the suit, application under Order 39, Rules 1 and 2 CPC, has also been filed, seeking the interim relief, restraining the defendant from causing damage and changing the nature of the suit land, by raising new construction, on any specific portion, during the pendency of suit. 6. When, put to notice, the said suit, as well as, application has been contested, by the defendant, by filing written statement, in which, preliminary objections have been taken that the suit of the plaintiff is not maintainable; plaintiff has not come to the Court with clean hands; he has intentionally and deliberately misrepresented the facts; plaintiff has no locus-standi to file the present suit; plaintiff is not entitled to any relief of injunction; plaintiff has no cause of action; plaintiff is estopped to file the present suit, on account of his own acts, deeds, conduct, admissions, omissions and acquiescence etc; the civil Court has no jurisdiction; and the plaintiff is not entitled for the relief, as claimed. 6.1. On merits, the factual position, with regard to the joint ownership has not been disputed. However, according to him, the entire land and built up structure is 5 ( 2026:HHC:31513 only in exclusive possession of the replying respondent. On the similar lines, the application under Order 39, Rules 1 and 2 CPC, has also been contested. 6.2. The learned trial Court, after hearing learned counsel appearing for the parties, has dismissed the application, vide order dated 19.08.2025, which has been assailed, by the plaintiff-Vinod Kumar, before the learned First Appellate Court. 6.3. The learned First Appellate Court, vide judgment dated 17.01.2026, was allowed the appeal and directed the parties to maintain status quo, qua raising new/fresh construction over vacant portion of the suit land, changing nature and possession of the same, till the disposal of the main suit. 6.4. Feeling aggrieved from the judgment dated 17.01.2026, present petition has been filed, before this Court. 6.5. On the basis of the grounds of petition, a prayer has been made to allow the petition, by setting aside the order passed by the learned First Appellate Court. 6.6. The learned First Appellate Court, has ordered the parties to maintain status quo, as referred to above, 6 ( 2026:HHC:31513 whereas, learned trial Court, in the present case, has dismissed the application, under Order 39, Rules 1 and 2 CPC. 6.7. In this factual background, this Court, while exercising the supervisory powers, has to consider the fact, whether the learned First Appellate Court, has rightly exercised, the jurisdiction vested in it, or has exceeded its jurisdiction, while exercising the power granted to it, under Order 43, Rule 1, of CPC. 7. Hon’ble Supreme Court, in case, titled as Ramakant Ambalal Choksi versus Harish Ambalal Choksi and others, reported in 2024 INSC 913, has elaborately discussed the powers of the learned Appellate Courts, under Order 43 Rule 1 of CPC. Relevant paragraphs-20 to 32 of the said judgment, are reproduced, as under:- 20.Order 43 of the CPC specifies the orders against which an appeal lies. SubRule (r) of Rule 1 of the said order provides that an appeal would lie against an order made under Rules 1, 2, 2A, 4 and 10 of Order 39 of the CPC respectively. 21.The law in relation to the scope of an appeal against grant or non-grant of interim injunction was laid down by this Court in Wander Ltd. v. Antox India P. Ltd. reported in 1990 Supp SCC 727. Antox brought an action of passing off against Wander with respect to the mark Cal-De-Ce. The trial court declined Antox’s plea for an interim injunction, 7 ( 2026:HHC:31513 however, on appeal the High Court reversed the findings of the trial judge. This Court, upon due consideration of the matter, took notice of two egregious errors said to have been committed by the High Court: a. First, as regards the scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order; and b. Secondly, the weakness in ratiocination as to the quality of Antox’s alleged user of the trademark on which the passing off action is founded. 22.With regards to (a), this Court held thus: “In such appeals, the appellate court will not interfere with the exercise of discretion of the court of the first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely, or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions … the appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below … If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion.” 23.This Court, while arriving at the above findings, relied on its earlier judgment in Printers (Mysore) v Pothan Joseph reported in (1960) SCC Online SC 62 where it was held thus: “[...] as has been observed by Viscount Simon LC in Charles Osenton & Co v Johnston – the law as to reversal by a court of appeal of an order made by a judge below in the exercise of his/her discretion is well established, and any difficulty that arises is due only to the application of well-settled principles in an individual case.” 24.It is pertinent to note that in Printers (supra) this Court had held that ignoring relevant facts is also a ground for interfering with the discretion exercised by the trial court. Furthermore, Viscount Simon LC in Charles Osenton & Co v Johnston reported in 1942 8 ( 2026:HHC:31513 A.C. 130, after stating the above, went on to quote Lord Wright’s decision in Evans v. Bartlam reported in 1937 A.C. 473: “It is clear that the court of appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong. But the court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him, the court of appeal cannot review his order unless he is shown to have 14 applied a wrong principle. The court must, if necessary, examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order.” 25.In Evans (supra) case, Lord Wright made it clear that while adjudicating upon the discretion exercised by the trial court, the appellate court is obliged to consider the case put forward by the appellant in favour of its argument that the trial court exercised its discretion arbitrarily or incorrectly in the circumstances. 26.What flows from a plain reading of the decisions in Evans (supra) and Charles Osenton (supra) is that an appellate court, even while deciding an appeal against a discretionary order granting an interim injunction, has to: a. Examine whether the discretion has been properly exercised, i.e. examine whether the discretion exercised is not arbitrary, capricious or contrary to the principles of law; and b. In addition to the above, an appellate court may in a given case have to adjudicate on facts even in such discretionary orders. 27.The principles of law explained by this Court in Wander’s (supra) have been reiterated in a number of subsequent decisions of this Court. However, over a period of time the test laid down by this Court as regards the scope of interference has been made more stringent. The emphasis is now more on perversity rather than a mere error of fact or law in the order granting injunction pending the final adjudication of the suit. 28.In Neon Laboratories Ltd. v. Medical Technologies Ltd. reported in (2016) 2 SCC 672 this Court held that the Appellate Court should not flimsily, whimsically or lightly 9 ( 2026:HHC:31513 interfere in the exercise of discretion by a subordinate court unless such exercise is palpably perverse. Perversity can pertain to the understanding of law or the appreciation of pleadings or evidence. In other words, the Court took the view that to interfere against an order granting or declining to grant a temporary injunction, perversity has to be demonstrated in the finding of the trial court. 29.In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan reported in (2013) 9 SCC 221 this Court emphasised on the principles laid down in Wander (supra) and observed that while the view taken by the appellate court may be an equally possible view, the mere possibility of taking such a view must not form the basis for setting aside the decision arrived at by the trial court in exercise of its discretion under Order 39 of the CPC. The basis for substituting the view of the trial court should be malafides, capriciousness, arbitrariness or perversity in the order of the trial court. The relevant observations are extracted below: “20. In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the 16 view of the trial court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down 10 ( 2026:HHC:31513 by this Court in Wander Ltd. v. Antox India (P) Ltd.” (Emphasis supplied) 30.This Court in Shyam Sel & Power Ltd. v. Shyam Steel Industries Ltd. reported in (2023) 1 SCC 634 observed that the hierarchy of the trial court and the appellate court exists so that the trial court exercises its discretion upon the settled principles of law. An appellate court, after the findings of the trial court are recorded, has an advantage of appreciating the view taken by the trial judge and examining the correctness or otherwise thereof within the limited area available. It further observed that if the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts. 31.This Court in Monsanto Technology LLC v. Nuziveedu Seeds Ltd. reported in (2019) 3 SCC 381, observed that the appellate court should not usurp the jurisdiction of the Single Judge to decide as to whether the tests of prima facie case, balance of convenience and irreparable injury are made out in the case or not. 32.The appellate court in an appeal from an interlocutory order granting or declining to grant interim injunction is only required to adjudicate the validity of such order applying the well settled principles governing the scope of jurisdiction of appellate court under Order 43 of the CPC which have been reiterated in various other decisions of this Court. The appellate court should 17 not assume unlimited jurisdiction and should guide its powers within the contours laid down in the Wander (supra) case.” (Self emphasis supplied) 8. Judging the facts and circumstances of the present case, in light of the aforesaid decision of the Hon’ble Supreme Court, there is no legal hesitation, for this Court to hold that the learned First Appellate Court, has acted like a trial Court and considered the entire case de 11 ( 2026:HHC:31513 novo, instead of recording the findings, on the basis of which, it can be said that the order passed by the learned trial Court is perverse. 9. Hon’ble Apex Court in Arulvelu and Another Versus State represented by the Public Prosecutor & Another, (2009) 10 Supreme Court Cases 206, has elaborately discussed the term ‘perverse findings’. Relevant paragraphs 24 to 30 of the said judgment, are reproduced, as under:- “24. The expression `perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. & Others v. Hanuman Prasad (Dead) through LRs. & Others (2001) 1 SCC 501 this Court observed that the expression `perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. 25. In Parry's (Calcutta ) Employees' Union v. Parry & Co. Ltd. & Others AIR 1966 Cal. 31, the Court observed that `perverse finding' means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. 26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. 12 ( 2026:HHC:31513 27. The expression "perverse" has been defined by various dictionaries in the following manner: 1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition “Perverse – Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.” 2. Longman Dictionary of Contemporary English – International Edition “Perverse – Deliberately departing from what is normal and reasonable.” 3. The New Oxford Dictionary of English - 1998 Edition “Perverse – Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.” 4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) “Perverse – Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.” 5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition “Perverse – A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.” 28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: "We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity." 29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with 13 ( 2026:HHC:31513 the scope of Articles 32 and 226 of the Constitution observed as under: "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. 10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with." 30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness – as distinguished from the legal permissibility – of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant 14 ( 2026:HHC:31513 material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law." 10. Similar view has again been taken by the Hon’ble Supreme Court in ‘S.R. Tewari Versus Union of India and Another’, reported in (2013) 6 Supreme Court Cases 602. Relevant paragraph 30 of the said judgment, is reproduced, as under:- “30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, Kuldeep Singh v. Commissioner of Police & Ors., Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary and Babu v. State of Kerala).” 11. Even otherwise, the expression ‘perverse’ has elaborately been explained, by the Hon’ble Supreme Court in case, titled as Ramakant Ambalal Choksi versus 15 ( 2026:HHC:31513 Harish Ambalal Choksi and others, reported in 2024 INSC 913. Relevant paragraphs 35 to 37, of the said judgment, are reproduced, as under:- “35.Any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough reported in (1878) 1 LR 1r 331, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey reported in 106 NW 814, the Court defined “perverse” as “turned the wrong way”; not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc. 36.The expression "perverse" has been defined by various dictionaries in the following manner: a. Oxford Advanced Learner's Dictionary of Current English, 6th Ed. Perverse-Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable. b. Longman Dictionary of Contemporary English - International Edition Perverse - Deliberately departing from what is normal and reasonable. c. The New Oxford Dictionary of English - 1998 Edition Perverse - Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. d. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) Perverse - Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant. e. Stroud's Judicial Dictionary of Words & Phrases, 4th Ed. Perverse - A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. 37.The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man’s inference 16 ( 2026:HHC:31513 on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. (See: Damodar Lal v. Sohan Devi and others reported in (2016) 3 SCC 78)” 12. Admittedly, in the present case, the parties to the lis are co-sharers. The plaintiff has sought the relief of injunction to restrain the defendant, from raising any construction and changing the nature of the suit land. He has not sought the relief that defendant be restrained from changing the nature, by way of construction, till partition of the suit land, nor, it is the case of the plaintiff that the defendant is going to raise construction over the more valuable portion of the suit land. 13. Considering the prayer clause, which has been reproduced, herein-above, to the considered opinion of this Court, the relief cannot be granted to the plaintiff, in the present case. If the relief, as claimed, in the plaint, is given to the plaintiff, then, it amounts to ouster of a co-sharers from the suit land, without seeking declaration. It is equally settled that when, the final relief, is not liable to be awarded, then, no interim relief can be granted. 17 ( 2026:HHC:31513 14. Moreover, when, the plaintiff has not taken any steps to get the land partitioned, then, the defendant cannot be permitted to be vexed twice, i.e. firstly; in the suit for permanent prohibitory injunction and secondly; in the partition proceedings. 15. The learned counsel appearing for the plaintiff in the present case, has also relied upon the decisions of Hon’ble Supreme Court, in case, titled as Garment Craft versus Prakash Chand Goel, reported in (2022), 4 Supreme Court Cases 181, especially para-15 of the judgment, which is, reproduced, as under:- “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 227of 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. 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.” 18 ( 2026:HHC:31513 16. The learned counsel appearing for the plaintiff could not point out, as to how, the said judgment, is in his favour. It has already been held that the learned First Appellate Court has exceeded, in its jurisdiction, while interfering with the findings of the learned trial Court, without recording the fact that those findings, are suffering from perversity. 17. With due respect to the law laid down by the Hon’ble Supreme Court, in the above case, the same is not applicable to the facts and circumstances of the present case, as nothing is there, on the file to demonstrate that in which portion, the defendant is allegedly going to raise construction. 18. The relief of injunction is equitable relief. When, a person is approaching the Court, for an equitable relief, he must do equity. The leaned counsel for the plaintiff could not satisfy the judicial conscience of this Court, as to how, the defendant could be restrained permanently from raising the construction, when, admittedly, he is the co-owner. 19 ( 2026:HHC:31513 19. Situation would have been otherwise, had the plaintiff sought the relief of injunction, till the partition of the land, by initiating the process for partition of land. 20. The learned counsel appearing for the plaintiff has also relied upon the decision of this Court, in case titled as Ashok Kapoor versus Murtu Devi, reported in 2016 (1) Shimla Law Cases 207. Relevant paragraph 46 of the said judgment, is produced, 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 the co-owner out of possession. ii) Mere making of construction or 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. 20 ( 2026:HHC:31513 (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 exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.” 21. No benefit could be derived, by learned counsel appearing for the plaintiff from the said case, as, in Principle No.(ii), it has been held that mere making of construction or improvement in the common property, does not amount to ouster, as such, the learned First Appellate Court, in the present case, has exceeded its jurisdiction, while interfering with the well reasoned findings of the learned trial Court, by assuming the power of the trial Court and has also exercised the jurisdiction, which has not been vested in it, by virtue of Order 43, Rule 1 of CPC. 21 ( 2026:HHC:31513 22. Consequently, the present petition is allowed, the order passed by the learned First Appellate Court is set-aside and the order passed by the learned trial Court is ordered to be restored. 23. Pending application(s), if any, shall also stands disposed of. 24. 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 petition. 25. Record be sent back. (Virender Singh) July 30, 2026 Judge (subhash sharma)