2026:HHC:35212 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 465 of 2008 Reserved on: 07.08.2026 Date of Decision: 20.08.2026 Chander Kanta & others ...Appellants Versus Virender Gupta ...Respondent _____________________________________ Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the appellants : Mr Mohinder Verma, Advocate. For the respondent : Mr Bhupender Gupta, Senior Advocate, with Mr Harshit Sharma, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 13.06.2008, passed by learned Additional District Judge, Mandi, Camp at Karsog, District Mandi, H.P. (learned Appellate Court), vide which the judgment and decree dated 18.10.2006, passed by learned Civil Judge (Senior Division) Karsog, District Mandi, H.P. (learned trial Court) were 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:35212 set aside. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience). 2. Briefly, stated on the facts giving rise to the present appeal are that the plaintiff filed a civil suit for permanent prohibitory injunction restraining the defendant from raising any construction or changing the nature of the suit land mentioned in para-1 of the plaint till it is partitioned by metes and bounds. It was asserted that the plaintiff is the owner in possession of half share of the suit land. The remaining half share is recorded in the ownership and possession of defendant no. 1 and other co-sharers. The plaintiff is residing about 50 km away from the suit land. The defendant no. 1 started raising construction on the part of the suit land without getting it partitioned. The plaintiff requested the defendant not to do so, but in vain. Hence, the suit was filed for seeking the relief mentioned above. 3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and cause of action, the suit having not been properly valued for the court fees and jurisdiction, and the plaintiff not being the 3 2026:HHC:35212 owner of the suit land. The contents of the plaint were denied on merits. It was asserted that the plaintiff Brij Lal had sold his entire right to Chhangu and revenue entry to this effect was recorded during the settlement. Defendant No. 1 purchased the share of Dhayan Dassi and Nanki by way of a registered sale deed, and an affidavit was also executed on 26.03.2004 regarding the delivery of possession. Defendant No. 1 raised a pillar and DPC within the limits of her own share. The plaintiff never objected to the construction by the defendant. Guddi Devi, one of the co-sharers, had also filed a civil suit for declaration, claiming herself to be the owner of the suit land. The suit has been filed without any basis; hence, it was prayed that it be dismissed. 4. A replication denying the contents of the written statement and affirming those of the plaint was filed. 5. The learned trial Court framed the following issues on 07.03.2006: 1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction? OPP 2. Whether the plaintiff is entitled for the relief of mandatory injunction? OPP 3. Whether the present suit is not maintainable? OPD 4 2026:HHC:35212 4. Whether the present suit is not tenable for want of non-joinder and mis-joinder of necessary parties? OPD 5. Whether the plaintiff is ceased to be owner of the suit land after the sale? OPD 6. Whether this suit is not properly valued for the purpose of court fee and jurisdiction? OPD 7. Whether the plaintiff has no cause of action? OPD 8. Whether the defendant has purchased the land to the extent of 1 biswa out of the suit land and is in possession of the same? OPD 9. Relief. 6. The parties were called upon to produce the evidence and plaintiff examined his general power of attorney, Virender Gupta (PW-1), Uma Chand Sharma (PW-2), Guddi Devi (PW-3), and Devender Gupta (PW-4). Defendant No.1 examined herself (DW-1), Amin Chand Verma (DW-2), Ghanshyam (DW-3), Dharam Dev Sharma (DW-4), Rajinder Kumar (DW-5), Puran Chand (DW-6), Sushil Kumar (DW-7) and Narsingh Dutt (DW- 8) 7. Learned trial Court held that the defendant No.1 had dug six pits for raising pillars of her construction. She was put in possession of the part of the suit land, where she was raising construction. Defendant no. 1 had purchased 0-0-17 bighas of land from co-sharer Dhayan Dassi alias Chinta Devi and Nanki Devi. Chhangu Ram had not handed over the possession to Brij 5 2026:HHC:35212 Lal, plaintiff’s grandfather. Mere raising of the construction over the joint land does not constitute ouster, justifying the grant of injunction. Hence, learned trial Court answered issues No.1, 2, 5 and 6 in the negative. Issues No. 3, 4, 7 and 8 in the affirmative and dismissed the suit. 8. Being aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff filed an appeal which was decided by the learned Additional District Judge, Mandi, Camp at Karsog (learned Appellate Court). Learned Appellate Court held that Dhyan Dassi and Nanki were joint owners to the extent of half share and Brij Lal was joint owner of half share. Chhangu Ram had handed over the possession of 0-1-0 bigha to defendant no. 1. He was succeeded by Guddi Devi, who delivered the possession of the suit land to the plaintiff. The plaintiff purchased half share during the pendency of the suit. The suit land had not been partitioned, and a co-sharer is not entitled to raise construction on the joint land. Learned Trial Court erred in refusing the injunction to the plaintiff. Hence, the Learned Appellate Court allowed the appeal and set aside the judgment and decree passed by the learned Trial Court and dismissed the suit. 6 2026:HHC:35212 9. Being aggrieved by the Judgment and decree passed by the learned Appellate Court, the defendant has filed the present appeal, which was admitted on the following substantial questions of law on 15.09.2008: 1. Whether Sh. Chhangu Ram, as per Agreement Exhibit DW-2/B dt. 26.03.04, has admitted factum of delivery of possession and he acknowledged receipt of sum of Rs.75,000/-from the Appellant Furan Chand, as per receipt exhibit DW-3/A and both the courts below have failed to appreciate and consider this documentary evidence which supported the claim of the Appellant? 2. Whether the findings as recorded against the Appellant are vitiated on account of taking into consideration inadmissible Evidence produced by the Respondent, and the Respondent has not acquired any interest on the basis of alleged unregistered Relinquishment Deed Exhibit DW-2/B by Smt. Guddi Devi by swearing an affidavit? 10. I have heard Mr Mohinder Verma, learned counsel for the appellants and Mr Bhupender Gupta, Senior Advocate, with Mr Harshit Sharma, learned counsel for the respondent. 11. Mr Mohinder Verma, learned Senior counsel for the appellants, submitted that Chhangu Ram had delivered the possession to the defendant. He executed an agreement (Ext. DW-2/B) and the receipt (Ext.DW-3/A). Learned Courts below erred in not appreciating these documents. The unregistered relinquishment deed (Ext.DW-2/B) executed by Guddi Devi was 7 2026:HHC:35212 inadmissible in evidence and could not have been relied upon; therefore, he prayed that the present appeal be allowed and the judgment and decree passed by the learned appellate court be set aside. 12. Mr Bhupender Gupta, learned counsel for the respondent, submitted that this Court does not have the jurisdiction to re-appreciate the evidence while deciding a regular second appeal, unless there is some perversity. No perversity has been shown in the present case, and the interpretation of the document is not a substantial question of law justifying any interference by this Court. Hence, he prayed that the present appeal be dismissed. 13. I have given a considerable thought to the submissions made at the Bar and have gone through the records carefully. Substantial question of law No.1 14. Chhangu Ram executed the affidavit (Ext.DW-2/A), in which he admitted that he had delivered the possession of Khasra No. 385 and 389 measuring 0-0-17 bighas to Chander Kanta. He stated that he had no objection to entering the name of Chander Kanta in the revenue record. He executed an 8 2026:HHC:35212 agreement (Ext.DW2/B) stating that he had delivered the possession of land measuring 0-0-17 bighas to Chander Kanta. He would not interfere with the possession of Chander Kanta. He also executed a receipt (Ext.DW-3/A) regarding the receipt of ₹75,000/- for relinquishing the possession. 15. Learned Courts below had not noticed these two documents; however, that will not make any difference because learned Appellate Court proceeded on the premise that the defendant, being a co-owner, was not entitled to raise construction on the land. The law relating to the co-sharers was considered by this Court in Ashok Kapoor v. Murtu Devi, 2015 SCC OnLine HP 1422= 2016 (1) Shimla Law Cases 207, and it was held that a co-sharer cannot be restrained from raising construction on the joint land on the ground that he has no right to raise construction on the joint land. After an exhaustive review of the case law, it was held 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 9 2026:HHC:35212 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. (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 an 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 the exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.” 16. It was further held that where the defendant was denying the ownership of the plaintiff, the defendant cannot be permitted to raise construction as the same would amount to ouster. It was observed: 10 2026:HHC:35212 “49. Reverting to the facts, it would be seen that the petitioner on the sheer strength of his possession has claimed a right to raise construction over the suit land and has in fact even added a flavour of adverse possession by claiming that he is in peaceful and uninterrupted possession of the suit land. The tone and tenor of the reply filed to the application under Order 39, Rule 1 and 2 CPC, coupled with the contents of the application separately preferred by the petitioner under Order 39, Rule 4 CPC, does indicate that the petitioner is virtually claiming ouster of the respondent, who admittedly is a co-owner of the property. His exercise of rights is inconsistent with the rights of the other co-owner. The petitioner has denied the rights of the other co-owner. Once it is so, then the petitioner cannot claim a right to raise construction without the consent of the other co- sharer, nor does he have any right to put up any portion of the joint holding to such a use which is detrimental to the interest of the other co-sharer or may amount to change of user of the property or ouster of the other co- sharer from that portion.” 17. In the present case, the defendant denied the plaintiff’s title in the written statement and claimed that the plaintiff had sold his possessory rights to Chhangu Ram before the settlement and the plaintiff is no longer the owner. However, the defendant no. 1, Chander Kanta, admitted in her cross-examination that plaintiff Brij Lal is the owner to the extent of 0-2-2 bighas of the suit land. Both the learned Courts below found the plaintiff to be the co-owner of the suit land. Hence, the plaintiff is entitled to restrain the defendant no. 1 from raising construction. 11 2026:HHC:35212 18. The copy of the Jamabandi (Ext.P8) shows that 0-4- 4 bigahs of land is recorded as Gair Mumkin. Defendant No.1 Chander Kanta (DW-1) stated that Chhangu Ram had delivered the possession of one biswa of the vacant land to her. Guddi Devi (PW-3), daughter of Chhangu Ram, admitted in her cross- examination that Chhangu Ram was recorded to be in possession of the house and Sehan as Davedar Beh. She admitted that the defendant No. 1 had raised construction over one biswa of the vacant land. The witnesses admitted that only one biswa of the land is lying vacant on the spot. Therefore, learned Appellate Court had rightly held that one biswa of vacant land was a valuable property, upon which no construction could have been raised to the detriment of other persons, who were the owner of the house and Sehan surrounding the vacant land, and the non-consideration of agreement (Ext.DW-2/B) and receipt (Ext.DW-3/A) will not make any difference to the outcome of the case. Hence, the substantial question of law is answered accordingly. Substantial question of law No.2 19. The learned Appellate Court had not considered the relinquishment deed (Ext. DW-2/B) executed by Guddi Devi, but 12 2026:HHC:35212 had relied upon the fact that the parties were co-owners and the co-owner was not entitled to raise construction on the joint land. This proposition, as broadly stated, may not be correct as per the judgment of this Court in Ashok Kapoor (supra); however, on facts, this judgment is correct because only one biswansi of the land is lying vacant, which is meant for the better use of the property by the other co-owners and could not have been put to construction. Further, the defendant no. 1 denied the plaintiff’s ownership and if permitted to raise construction her act would amount to ouster. Therefore, the learned Appellate Court had rightly granted the injunction and this substantial question of law is answered accordingly. Final Order 20. In view of the above, the present appeal fails, and it is dismissed, so also the pending application(s), if any. 21. The record of the learned Courts below be returned along with a copy of this judgment. (Rakesh Kainthla) Judge 20th August, 2026 (ravinder)