Extracted from the PDF above. The PDF is authoritative.
2026:HHC:36697 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. : 115 of 2019 Reserved on : 06.08.2026 Decided on : 31.08.2026 Uploaded on : 31.08.2026 Suman Devi
…Petitioner Versus Gayatri Devi & Anr . …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Ajay Kumar, Senior
Advocate, assisted by Ms. Vanshika Sharma, Advocate. For the respondents : Ms. Devyani Sharma, Senior Advocate, assisted by Mr. Shivam Sharma, Advocate.
Virender Singh, Judge PetitionerSuman Devi, has filed the present petition, under Article 227 of the Constitution of India, against the judgment dated 06.02.2019, passed by the Court of learned District Judge, Una, District Una, H.P. (hereinafter referred to as ‘the first appellate Court’), in Civil Misc. Appeal No. 29 of 2018, titled as “Suman Devi Versus Gayatri Devi & Anr.”. 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
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2. By way of the judgment dated 06.02.2019, the learned first appellate Court has dismissed the appeal preferred by the petitioner, against the order dated 17.07.2018, passed by the learned Senior Civil Judge, Una, District Una, H.P. (hereinafter referred to as ‘the trial Court’), in CMA No. 246VI/2017, filed in Civil Suit, titled as “Gayatri Devi & Anr. Versus Suman Devi”.
3. Vide order dated 17.07.2018, the learned trial Court has allowed the application under Order 39 Rules 1 and 2 CPC, filed by respondent No. 1 Gayatri Devi, by passing the order, directing the parties to maintain status quo qua nature and construction over the suit land.
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.
Brief facts, leading to the filing of the present petition, before this Court, as borne out from the documents annexed with the petition, may be summed up, as under: 5.1 The plaintiffs have filed a suit for permanent prohibitory injunction against the defendant, with a prayer to restrain her, from changing the nature and character,
3 2026:HHC:36697 raising any sort of construction, block the common passage and further from ousting the plaintiffs from joint possession over the land measuring 001149 hec., comprised in Khewat No. 13min, Khatauni No. 13, Khasra No. 136, as per jamabandi, for the year 20152016, situated at Mohal Saloh, Tehsil Bangana, District Una, H.P. (hereinafter referred to as ‘the suit land’), jointly possessed by the parties, along with other cosharers, till final partition. In the alternative, relief of mandatory injunction, directing the defendant to remove any super structure, if so, raised by her, forcibly during the pendency of the suit, has also been sought. 5.2 According to the stand taken by the plaintiffs, the suit land is ‘Shamlat Deh’ and is jointly possessed by the parties, along with other cosharers. The suit land is stated to be very valuable piece of land being situated in the vicinity of village Abadi and the same is still joint and has not been partitioned. 5.3 It is the further case of the plaintiffs that the defendant is very clever, headstrong and influential person of the locality and having no care for law and has threatened to change the nature and character, to raise
4 2026:HHC:36697 construction over the specific portion of the suit land, more than her entitlement, to block the common passage, and further to oust the plaintiffs from joint possession. 6. On the basis of above facts, a prayer has been made to decree the suit, as prayed for. 7. Along with the suit, application under Order 39 Rules 1 and 2 CPC, has been filed with a prayer to restrain the defendant from changing the nature and character, raising any sort of construction, block the common passage and further from ousting the plaintiff from the suit land, during the pendency of the suit. 8. When, put to notice, the suit has been contested by the defendant, by filing the written statement, as well as, the reply to the application under Order 39 Rules 1 and 2 CPC.
8.1 As per the written statement, preliminary objections have been taken that the suit is not maintainable; plaintiffs have not approach the Court with clean hands and have intentionally, willfully concealed the material facts; plaintiffs are estopped from filing the suit by their act, conduct, deeds and acquiescence; plaintiffs have
5 2026:HHC:36697 no legally enforceable cause of action and plaintiffs have no locus standi to file the present suit. 8.2 On merits, the contents of para 1 of the plaint regarding resident and right holder have been admitted, as a matter of record. However, according to them, plaintiff No. 1 is permanent resident of village Bharmout, Tehsil Bangana, District Una, while plaintiff No. 2 is permanent resident and right holder of village Tamlet, Tehsil Bangana, District Una. It has also not been disputed that the suit land is jointly possessed by the parties, along with other cosharers. 8.3 It is the further case of the defendant that erstwhile owner/cosharer Balia himself, as well as, GPA, on behalf of his mother Smt. Sukhdevi, sold land measuring 3 Kanals, then bearing Khasra No. 69, in favour of the defendant to the extent of 2/3 share, being 2 Kanals and 1/3 share, being 1 Kanal in favour of plaintiff Gayatri Devi, vide registered sale deed being Basika No. 516 of 1989, registered on 26.12.1989. Thereafter, defendant Suman Devi sold land measuring 000383, being 1/3 share of total land, measuring 001149 having become new Khasra No. 136, of old Khasra No. 69 to plaintiff No. 2
6 2026:HHC:36697 Mukesh Kumar and since then, the parties are having 1/3 share each, in the suit land and no one except the parties to the lis, have any interest in the suit land. Plaintiff No. 1, who had purchased 1/3 share, along with the defendant, raised her exclusive abadi in the centre of Khasra No. 136, which is covered by boundary wall and Smt. Gayatri Devi plaintiff No. 1 had swornin an affidavit, before the Executive Magistrate Bangana, on 10.07.1996, in which, she has given no objection for the defendant to raise construction over the subject matter of the lis.
The original affidavit, so sworn by Smt. Gayatri Devi, has been relied upon by the defendant. 8.4 The suit has further been contested on the ground that both the plaintiffs have raised their abadis exclusively at their choiced place, much before the raising of construction by the defendant. 9. On the similar grounds, application under
Order 39 Rules 1 and 2 CPC has been contested.
10. The application has been allowed by the learned trial Court, by directing the parties to maintain status quo qua nature and construction over the suit land.
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11. The said order has been assailed before the learned first appellate Court, by defendant Suman Devi. The appeal has been dismissed by the learned first appellate Court, vide order dated 06.02.2019.
12. The said findings have been assailed before this Court, by defendant Suman Devi, by way of the present petition.
13. The order has been assailed, mainly, on the ground, that both the Courts below, have not taken into
consideration the admitted facts and passed the order, which resulted into miscarriage of justice.
14. According to the defendant, both the Courts have wrongly exercised the jurisdiction vested in them and the application under Order 39 Rules 1 and 2 CPC has been allowed by the learned trial Court by not taking into
consideration the legal parameters required to be considered for deciding the application under Order 39 Rules 1 and 2 CPC. 15. The order passed by learned trial Court, has been assailed further, on the ground, that the plaintiffs have constructed the house by covering the area more than their shares and the defendant has also completed the
8 2026:HHC:36697 construction and now, only finishing work is required to be done. 16. On the basis of above facts, Sh. Ajay Kumar, Senior Advocate, assisted by Ms. Vanshika Sharma, Advocate, for the petitioner has prayed that the present petition may kindly be allowed, by setting aside the order, which has been wrongly upheld by the learned first appellate Court. 17. Per contra, Ms. Devyani Sharma, Senior Advocate, assisted by Mr. Shivam Sharma, Advocate, for the plaintiffsrespondents, has supported the order passed by the learned trial Court, as upheld by the learned first appellate Court, on the ground that this Court under Article 227 of the Constitution of India can only interfere in the order, if the same is perverse or by recording the findings, that while passing the order impugned, the learned trial Court has exceeded its jurisdiction or wrongly exercised the jurisdiction, vested in it. 18. To buttress the contentions, learned counsel for the plaintiffsrespondents, has relied upon the decisions of this Court in CMPMO No. 713 of 2023 titled as ‘Baldev Raj Vs Ashok Kumar & Ors.’; CMPMO No. 414 of 2024 titled as
9 2026:HHC:36697 ‘Amar Singh Vs Parkasho Devi’; CMPMO No. 100 of 2025 titled as ‘Chander Jot Singh Vs Dharam Singh & Ors.’; and CMPMO No. 86 of 2026 titled as ‘Chuni Lal Vs Rakesh Kumar & anr.’, and prayed that the petition filed by the defendantpetitioner sans merits and the same may kindly be dismissed. 19. The petitioner is before this Court under Article 227 of the Constitution of India, which is supervisory jurisdiction of this Court. It is no longer resintegra that the findings of the Courts below can only be interfered with, if the same are found to be perverse or the order has been passed by the learned trial Court in exercise of jurisdiction, which has not been vested with the trial Court and the jurisdiction has wrongly been exercised.
Even, in view of the case law relied upon by the respondents, there is no absolute bar in exercising the jurisdiction vested under Article 227 of the Constitution of India, in case, the findings, so recorded by the learned trial Court found to be suffering from perversity. 20. The term “perverse” has duly been elaborated by the Hon’ble Supreme Court in ‘Arulvelu and Another Versus State represented by the Public Prosecutor and
10 2026:HHC:36697 Another’, reported in (2009) 10 Supreme Court Cases
206. Relevant paragraphs 22 to 30 of the said judgment are reproduced, as under:
“22. We have carefully perused the judgment of the trial court and the impugned judgment of the High Court. The trial court very minutely examined the entire evidence and all documents and exhibits on record. The trial court's analysis of evidence also seems to be correct. The trial court has not deviated from the normal norms or methods of evaluation of the evidence. By no stretch of imagination, we can hold that the judgment of the trial court is based on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it and consequently the judgment of the trial court is perverse. 23. We also fail to arrive at the conclusion that the
discussion and appreciation of the evidence of the trial court is so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse and the findings rendered by the trial court are against the weight of evidence. The law is well settled that, in an appeal against acquittal, unless the judgment of the trial court is perverse, the Appellate Court would not be justified in substituting its own view and reverse the judgment of acquittal. 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, 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, 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. Collector of Central Excise, Cochin, 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. 11 2026:HHC:36697
26. In M. S. Narayanagouda v. Girijamma & Another, 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. 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., the Court observed thus:
"8. … 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
12 2026:HHC:36697 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, the Court while dealing with 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 Officercum Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992, 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 reappreciate the primary or
13 2026:HHC:36697 perceptive facts which were otherwise within the domain of the factfinding 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 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." The term “perverse” has duly been elaborated by the Hon’ble Supreme Court in ‘Arulvelu and Another Versus State represented by the Public Prosecutor and Another’, reported in (2009) 10 Supreme Court
Cases
206. Relevant paragraphs 22 to 30 of the said
judgment are reproduced, as under:
“22. We have carefully perused the judgment of the trial court and the impugned judgment of the High Court. The trial court very minutely examined the entire evidence and all documents and exhibits on record. The trial court's analysis of evidence also seems to be correct. The trial court has not deviated from the normal norms or methods of evaluation of the evidence. By no stretch of imagination, we can hold that the judgment of the trial court is based on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it and consequently the judgment of the trial court is perverse.
23. We also fail to arrive at the conclusion that the
discussion and appreciation of the evidence of the trial court is so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse and the findings rendered by the trial court are against the weight of evidence. The law is well settled that, in an appeal against acquittal,
14 2026:HHC:36697 unless the judgment of the trial court is perverse, the Appellate Court would not be justified in substituting its own view and reverse the judgment of acquittal. 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, 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, 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. Collector of Central Excise, Cochin, 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, 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. 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
15 2026:HHC:36697 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., the Court observed thus:
"8. … 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, the Court while dealing with 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
16 2026:HHC:36697 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 Officercum Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992, 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 reappreciate the primary or perceptive facts which were otherwise within the domain of the factfinding 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.”
21. 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
17 2026:HHC:36697 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).”
22. Being guided by the above decisions, now this Court would proceed further to ascertain the fact, whether the appeal is liable to be accepted or not. In the present case, the plaintiff has filed the suit, with the following relief:
“It is therefore, prayed that a decree for permanent injunction restraining the defendant from changing the nature and character, raising any sort of construction, block the common passage and further from ousting the plaintiffs from joint possession over land measuring 00 1149 hec., comprised of Khewat No. 13min, Khatauni No. 13, Khasra No. 136, as entered in Jamabandi for the year 201516, situated at Mohal Saloh, Tehsil Bangana, District Una (HP) jointly possessed by the parties, along with other cosharers till final partition and in the alternative decree for mandatory injunction directing the defendant to remove any super structure if so raised by the defendants, forcibly during the pendency of the suit, may please be passed in favour of the plaintiffs and against the defendant with costs.”
23. The pleadings are totally silent, about the fact, whether any proceedings for partitioning the suit land has
18 2026:HHC:36697 been initiated by any of the parties. The defendant, in the written statement, has taken a specific stand that plaintiff Gayatri Devi, has given no objection for the defendant to raise construction in the land, subject matter of the lis. 24.
The learned trial Court in its order dated 17.07.2018, has simply reproduced the averments as made in the reply/written statement and simply allowed the application, on the ground, that in the revenue record, suit land has been recorded as ‘Shamlat Deh’ and is in joint possession of the parties, along with cosharers. 25. The relief of injunction is a discretionary relief, but, the said discretion must be exercised, on the basis of the stand taken by the parties, before the learned trial Court. 26. Even otherwise, before granting the relief under
Order 39 Rules 1 and 2 CPC, the learned trial Court is bound to record the findings qua existence of three ingredients i.e. ‘prima facie case’; ‘balance of convenience’; and ‘irreparable loss and injury which cannot be compensated in terms of money’.
27. At the cost of repetition, there is nothing on the record to demonstrate that any proceedings have been
19 2026:HHC:36697 initiated by the parties to the lis, especially the plaintiffs, who are seeking the relief of injunction, till the suit land is partitioned by metes and bounds, nor, the learned trial Court, while allowing the application, under Order 39 Rules 1 and 2 CPC, has taken into consideration the averments of the written statement, as contained in para 2 of the same, in which, it has been asserted that the defendant with the express consent of the plaintiffs, has raised the construction.
28. It is also the stand of the defendant that both the plaintiffs have raised their abadi, at their choiced place, much before raising of construction by the defendant. This material aspect has also not been taken into consideration by the learned trial Court.
29. Such a relief of injunction cannot be granted, merely on the basis of the allegations, as levelled by the plaintiffs, against the defendant. No doubt, the term ‘prima facie’ has no where been defined in CPC, but ‘prima facie case’ means ‘a case, which requires mature
consideration of the Court and which is not liable to be thrown away at the threshold of the litigation’.
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30. Relief of injunction is equitable relief and when a person is approaching the Court for equitable relief, he must do equity. If the facts and circumstances of the present case are seen in the light of the decision of this Court in Ashok Kapoor Versus Murthu Devi, 2016 (1) Shimla Law Cases 207, then, the findings so recorded by the learned trial Court, as upheld by the learned first appellate Court, to the considered opinion of this Court, falls within the definition of ‘perverse findings’. Relevant para 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 cosharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down: i) a coowner is not entitled to an injunction restraining another coowner from exceeding his rights in the common property absolutely and simply because he is a coowner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the coowner 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 coowner in possession the value or utility of the property is diminished, then a coowner 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 coowner in possession are detrimental to the interest of other coowners, a coowner 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
21 2026:HHC:36697 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.”
31. The plaintiffs are not alleging their ouster from the suit land, on account of the alleged act of raising construction, which, according to the defendant, is being done with the express consent of plaintiff No. 1, by way of the affidavit dated 10.07.1996. In para 2, of the written statement, the defendant has given the dimension of the area, which is under the exclusive possession of the parties to the lis. The defendant has taken simple and straight defence that both the plaintiffs have raised their abadi and she has raised the construction with the consent of plaintiff No. 1.
32. Moreover, when the plaintiffs have 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.
33. Last, but not the least, the order passed by the learned trial Court does not contain the reasons for
22 2026:HHC:36697 allowing the application as in para 1, 2 and 3, except reproducing the facts, the rival contentions of the parties, as raised in the pleadings, have not been discussed and in the concluding para, the learned trial Court has simply allowed the application and the parties have been directed to maintain status quo qua nature and construction over the suit land, on the basis of the fact that the suit land is recorded as ‘Shamlat Deh’.
34. The parties to the lis are cosharers and in the absence of the plea of ouster, no injunction can be issued to the cosharer that too at the instance of the person, who even has not taken single step to get the suit land partitioned.
35. Accordingly, the present petition is allowed. The order dated 17.07.2018, passed by the learned trial Court, as upheld by the learned first appellate Court, vide
order dated06.02.2019 is set aside. Consequently, the application under Order 39 Rules 1 and 2 CPC is ordered to be dismissed.
36. Any of the observations, made hereinabove, shall not be taken, as an expression of opinion, on the
23 2026:HHC:36697 merits of the case, as these observations are confined, only to the disposal of the present petition.
37. Pending application(s), if any, shall also stand(s)
disposed of.
(Virender Singh) 31st August, 2026
Judge (Pramod Kumar)