( 2026:HHC:13550 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 234 of 2018 Reserved on : 09.04.2026 Date of Decision: 24.04.2026 ____________________________________________________ Kali Dass ...Petitioner. Versus Arvind Kumar …..Respondent. Coram Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the petitioner: Mr. Karan Singh Kanwar, Advocate. For the respondent: Mr. P.S.Goverdhan, Senior Advocate with Mr. Rakesh Thakur, Advocate. __________________________________________________ Romesh Verma , Judge The present petition arises out of the judgment dated 23.11.2017, passed by the learned Additional District Judge- Sirmaur, District H.P., whereby an appeal preferred by the present respondent has been allowed and the order dated 05.09.2017 as passed by learned Civil Judge, Rajgarh (Camp at Sarahan), District Sirmaur, H.P. has been set-aside. 2. The brief facts of the case are that the present respondent Arvind Kumar filed a suit for permanent prohibitory injunction in the Court of learned Civil Judge, Rajgarh, Camp at Sarahan, Distt. Sirmaur, H.P. It was averred in the paint that the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2  ( 2026:HHC:13550 ) plaintiff is co-owner in possession of the land comprised in Khata Khatauni No. 4/4, plots 20, measuring 71.08 bighas, situated in Village Chompa Dharon, P.O Jaiher, Tehsil Pacchad, District Sirmour, H.P. The suit land is unpartitioned between the parties. Therefore, the defendant has got no right, title or interest to occupy the best portion of the suit land by dispossessing the plaintiff forcibly and to change the nature of the suit land by raising construction with the help of the labourers over the suit land. 3. It was averred that the defendant on 05.06.2017 started raising construction over the suit land with the help of the labourers. Though, the plaintiff requested the defendant not to indulge in the said illegal activities but he did not pay any heed to the request as made by the plaintiff. Therefore, decree for permanent prohibitory injunction, restraining the defendant from interfering, changing the nature of the suit land by raising construction over the land comprised in Khata Khatauni No. 4/4, plot 20, measuring 71.08 bighas, situated in Village Chompa Dharon, P.O Jaiher, Tehsil Pacchad, District Sirmour, H.P. was sought from the learned Trial Court. 3  ( 2026:HHC:13550 ) 4. Along with the plaint, the plaintiff filed an application under Order 39 Rules 1 and 2 CPC read with section 151 CPC restraining the defendant from interfering, raising construction, changing the nature of the suit land or dispossessing the applicant from the suit land during the pendency of the suit. 5. The defendant/petitioner filed written statement by raising various preliminary objections with respect to the maintainability, cause of action, estoppel etc. It was averred that the plaintiff and his father and family members, who are living together, are raising new constructions over the suit land in an irrigated portion and are also having old house in the suit land. The defendant has got no house over the suit land. 6. It was averred that the plaintiff has put lintel over the new construction existing on the suit land on 13.06.2017 without the implied or express consent of the other co-owners including the defendant. Plaintiff has not mentioned regarding the existence of his house over the suit land and wants to restrain the defendants from constructing the house. 7. It was averred that the plaintiff has already occupied the best portion of the suit land and has raised dairy farm by converting the land use and has already constructed three Polly 4  ( 2026:HHC:13550 ) houses and three water tanks over the suit land. He is also raising construction over the suit land and has got old Abadi. Defendant is having 1/4th share over the suit land which is measuring 17.17 bighas and he is raising construction over the vacant portion of the suit land, which is a negligible portion as compared to the total land. 8. To the similar effect, the defendant also filed a reply to the application under Order 39 Rule 1 and 2 CPC read with Section 151 of CPC. It was stated in the reply to application that the applicant/plaintiff has already occupied the best portion of the suit land and had raised dairy farm by converting the land use and had constructed three polly houses and three water tanks over the suit land. 9. The plaintiff filed rejoinder to the reply in the application U/O 39 Rules 1 & 2 of CPC, whereby the averments as made in the reply were refuted. Though, it was stated that there are old houses in the suit land, in which the father of the petitioner along with the other family members are residing. Further, in the replication, it was stated that there are old residential and cow- shed over the part of the suit land which has been constructed long back. 5  ( 2026:HHC:13550 ) 10. As far as the construction of the Polly Houses and raising of the dairy farm is concerned, the rejoinder which has placed on record in present proceeding, Annexure P-5, is totally silent. 11. The learned Civil Judge, Rajgarh, Camp at Sarahan, vide its order dated 5.09.2017 dismissed the application under Order 39 Rules 1 & 2 of CPC as filed the plaintiff/present respondent. 12. Feeling dissatisfied, the plaintiff preferred an appeal before the Court of learned Additional District Judge, Nahan, District Sirmaur, H.P on 07.09.2017. The First appellate Court vide its judgment dated 23.11.2017 allowed the appeal, as preferred by the plaintiff and the defendant/petitioner was restrained from raising any construction or dispossessing the applicant from the suit land during the pendency of the suit. 13. Feeling aggrieved by the impugned judgment as passed by the learned First Appellate Court, the defendant has preferred the present petition under Article 227 of the Constitution of India. 14. It is contended by the learned counsel for the petitioner/defendant that the impugned judgment as passed by 6  ( 2026:HHC:13550 ) the learned First Appellate Court is not sustainable in the eyes of law as the point in controversy has not been determined by the Court below in its true perspective. He submits that the Learned First Appellant Court has gone astray while allowing the application filed by the present respondent/plaintiff for injunction without considering the material facts on record. He further submits that the learned trial Court has rightly adjudicated the point in controversy, therefore, after setting aside the impugned judgment as passed by the learned Appellate Court the order as passed by the learned Trial Court is required to be restored. 15. On the other hand, Mr. Pratap Singh Goverdhan, learned Senior Counsel assisted by Mr. Rakesh Thakur, Advocate has defended the impugned judgment as passed by the First Appellate Court. He submits that the learned Court below has rightly injuncted the present petitioner from raising construction as the suit land is joint amongst the parties and till the time the suit land is not partitioned by metes and bound, no party can be permitted to raise the construction over the valuable portion of the suit land. 16. I have heard the learned counsel for the parties. 7  ( 2026:HHC:13550 ) 17. In the present case the plaintiff has filed the suit on the averments that the suit land is joint amongst the parties, therefore, till the time suit land is partitioned by metes and bounds, the defendant cannot be permitted to raise the construction over the best portion. Further that once the land is joint amongst the parties, no co-sharer can be permitted to raise the construction and he should be injuncted during the adjudication of the suit. 18. On the other hand, the said allegations have been refuted by the defendant on the ground that the plaintiff/ respondent has not approached the Court with clean hands. He has submitted that the plaintiff and his father are living together and they are raising new construction over the suit land in an irrigated portion. They are having old houses in the suit land, whereas the defendant/petitioner has got no house to live in. 19. Further, it is the case of the defendant that the plaintiff has put a lintel over the new construction over the suit land on 13.06.2017. The defendant has vehemently stated that the plaintiff has already occupied the best portion of the suit land and has raised dairy farm by converting the suit land and has 8  ( 2026:HHC:13550 ) already constructed the three polly houses and three water tanks over the suit land. 20. It is an admitted fact that the total suit land comprises of 71.08 bighas. It is also admitted by the parties that the plaintiff and the defendant are having share to the extent of 17.17 bighas each. 21. It is the specific case of the defendant that he is raising construction on a very meager portion of the suit land, neither he is exceeding his share while raising the construction nor that will amount to the ouster of the present plaintiff. 22. The learned counsel for the defendant has vehemently argued that after raising construction of polly houses,dairy farm and raising dairy farm and raising new construction now it does not lie in the mouth of the plaintiff to say that the defendant has got no right to raise any construction over the suit land. He further submits that he does not have any house over the suit land, therefore, he may be permitted to raise construction, which is to be raised on very meager portion of the suit land. 23. The case of the plaintiff that suit land is joint and co- sharer has got no right to raise construction over the joint land and that he is entitled to seek an injunction against the 9  ( 2026:HHC:13550 ) defendant from raising the construction is against the spirit/ mandate of law which has been laid down by this Court. 24. This Court in Ashok Kapoor Versus Murtu Devi 2016 (1) Shimla Law Cases 207 has 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 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. 10  ( 2026:HHC:13550 ) (iv) If the acts of the co-owner in possession are detrimental to the interest of other co- owners, a coowner 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.” 25. That to the similar extent this Court in Piar Chand and others Versus Sandhya Devi and others 2017 (2) Shim.LC 1040 has held that where the plaintiff has failed to lead evidence to prove that the proposed construction of the defendants will diminish the value or utility of property or the same is detrimental to the interest of other co-owners including the plaintiff, the suit cannot have been decreed. 26. In case in Ramesh Kumar vs. Sheetal and others 2021(1) Shim.LC 377, it was held as follows: “17. It is quite apparent from the aforesaid exposition of law that a co-owner is not entitled to an injunction restraining another co-owner 11  ( 2026:HHC:13550 ) 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. The mere making of construction or improvement in the common property does not amount to ouster rather, if by any 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. If the acts of the co- owner in possession are detrimental to the interest of other coowners, a co-owner out of possession can seek an injunction to prevent such an act which is detrimental to his interest.” 27. As per the exposition of law as referred, therefore, a co-sharer cannot be restrained from raising construction over the joint land unless it is shown that such an act would prejudice the rights of the other side. Mere raising of construction or improvement does not amount to ouster as laid down by this Court. 28. The learned counsel for the defendant has vehemently projected the case and submitted that once the plaintiff has occupied the best and valuable portion of the land by raising three polly houses and by raising dairy farm which has not been refuted in the rejoinder, rather there is an admission in the reply to the stay application, which has been filed in the present proceedings, whereby it has been admitted that respondents 12  ( 2026:HHC:13550 ) has constructed one polly house in the year 2008, therefore, contention as raised by the learned counsel for the defendant is correct that the plaintiff has not approached the court with clean hands. He has concealed the material facts from this Court. On the one hand he has utilized the joint land and is obtaining commercial gains, on the other hand when the defendants are trying to raise construction on a meager portion of the suit land, whereby his share in the total land comes to 17.17 bighas, the plaintiff has filed the instant suit. 29. Therefore, under such circumstances the plaintiff is not entitled for the discretionary relief of injunction when he has suppressed and withheld the material particulars from the Court. It is well settled principle of law that a person who claims equity must also do equity. 30. In the present case, the plaintiff has suppressed the material facts and has not disclosed the fact that he is running a dairy farm and is having polly houses in the suit land and as per the averments as made by the defendant that the plaintiff has raised fresh construction. All these aspects has been withheld in order to avail undue advantage. 13  ( 2026:HHC:13550 ) 31. A co-sharer cannot injunct the other co-sharers on the ground that the suit land is joint amongst the parties when he himself has raised the construction over the suit land. 32. The law as laid down by this court has held that the person who seeks equity must do equity. Therefore, a co- sharers who himself has raised the construction cannot seek the injunction against the other co-sharer setting the plea of joint land. 33. This Court in Smt. Kalawati vs. Netar Singh AIR 2016 HP 85 has held as follows: “10. It would be evident from the decision, the mere fact that the parties are co-owners and joint owners etc. is not the sole criterion for granting or refusing the injunction, the conduct of the parties too plays an important role and in such like cases, the plaintiff conduct has to be free from blame so as to enable the court to conclude that the plaintiff has approached the Court with clean hands. But here is a case where the petitioner though claims herself to be a joint owner with the respondents after having already raised construction over the suit land seeks an injunction against the respondents without even disclosing this fact. 11. The injunction being an equitable relief, the person seeking an injunction must come with clean hands. The well-known mechanism that applies in such a matter is "he who seeks equity must do equity". Since the petitioner has admittedly raised construction of her house(s) on a portion of the suit land, she is estopped and has waived her right to assail and question the construction being raised by 14  ( 2026:HHC:13550 ) the respondents. The fact that the petitioner has not approached the court with clean hands in itself is sufficient ground for not granting the relief of injunction.” 34. To the similar extent is the judgment in Raj Kumar versus Rakesh Kumar 2022 2 ShimLC 1083 wherein it was observed: “5(a) It is not in dispute that the plaintiff had already raised construction over the suit land alleged by him to be the joint land of the parties along with other cosharers. This fact was not disclosed by the plaintiff in the manner it ought to have been stated in the plaint. The plaintiff in a round about manner averred that the defendant was trying to block the air and light of the house of the plaintiff existing over the suit land. Prima facie observation of both the learned courts below that the plaintiff had himself raised construction on the best and most valuable portion of the suit land also assumes significance. It is well settled that when a person seeks equity, he must come with clean hands. 5(b) It is admitted fact that Sh. Kartar Chand brother of the petitioner/plaintiff and one of the co-sharer had also raised construction over the suit land in the year 2010. It is not the case of the petitioner/plaintiff that he had objected to the construction work done by his brother over the suit land or that the plaintiff had instituted any civil suit for restraining his brother from raising construction over the suit land. It is apparent that the petitioner/plaintiff has selectively chosen the respondent/defendant for filing the suit for injunction. At this stage, it will be relevant to notice the following references:- 15  ( 2026:HHC:13550 ) In (2010) 3 Shimla L.C. 205, titled Payar Singh Vs. Narayan Dass and others, the respondents pleaded themselves to be in settled separate possession of joint land in family partition over which they were raising construction. They also took up a stand that the petitioner had also constructed his house over the land in his possession. The Court upheld the contentions of the respondents. The following observations made in the judgment are material : “12. The respondents in the written statement have specifically pleaded that parties are in separate possession under the family arrangement. The petitioner has also constructed his house on the joint land. It is not the stand of the petitioner that respondents are raising construction in an area which is more than their share. The case of the respondents is that the petitioner has constructed his house on a better portion of the land. The under- construction house of the respondents is away from National Highway 21 whereas the house of the petitioner abuts N. H.21. The respondents have placed on record on the file of revision photographs construction of an under- construction house of the respondents. The photographs indicate the sufficient gap between the already constructed house of the petitioner and the under-construction house of the respondents over which even a slab has been placed. It is the case of the respondents in the written statement that they are in separate possession of the land in the family arrangement. This fact has not been denied by filing replication. The respondents are claiming possession over the suit land under family arrangement i.e. with the consent of the petitioner over which they are raising construction. The respondents have thus established a prima facie case, balance of convenience, and irreparable loss in their favour. In these circumstances, no fault can be found with the impugned judgment. In revision, 16  ( 2026:HHC:13550 ) the scope is limited as held in The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another Vs. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, AIR 1973 SC 76. The suit is for permanent prohibitory and mandatory injunction. The rights of the parties will be decided in the suit. It has not been established that the view taken by the learned District Judge does not emerge from the material on record.” xxxxxxxxx In a judgment dated 03.09.2021, delivered in CMPMO No. 555 of 2018, Ajay Kumar Vs. Ishwar Dutt, it was held that when a co-sharer himself raises a construction over the joint land when a cosharer does not object to the raising of construction over the joint land by some other co-owners, then, he cannot seek to restrain one specific co-owner from raising construction over part of the suit land, more so, when the construction being raised by that particular co-owner is over a portion, which, as per the revenue record, is in his possession along with others and when the plaintiff has not been shown in possession of this specific portion of land. Placing reliance upon various authorities, defendants in CMPMO No. 77 of 2021, titled Smt. Vyasa Devi Vs. Harish Kumar were permitted to undertake construction inter-alia on the ground that the plaintiff had also carried out construction on the joint land. Material observations made by the Court on facts are as under:- “10. The facts involved in the case have been narrated by me hereinabove and the same are not being repeated for the sake of brevity. It is not in dispute that the parties are co- sharers of the suit land but the petitioners herein are recorded to be in possession of the portion of the suit 17  ( 2026:HHC:13550 ) land in issue along with other cosharers. It is further not in dispute that the respondents herein are not recorded to be in possession of the suit land. It is also not in dispute that the respondents herein have also carried out construction activities by raising constructions over the joint land, as is evident from the record. In these circumstances, this Court is of the considered view that the petitioners herein, who besides being the coowners of the suit land are also recorded to be in possession thereof, cannot be estopped from raising construction pending the adjudication of the civil suit. It is settled law that injunction cannot be granted against a co-sharer and further as the respondents herein themselves have constructed their houses over the joint suit land, in these circumstances, they cannot be permitted to restrain other co-sharers, i.e. present petitioners, from doing so. The construction, which is being carried out by the petitioners, however obviously shall be subject to the final adjudication of the suit as also partition proceedings, if any, and if the area upon which construction being carried out by the present petitioners ultimately falls in the share of the plaintiffs in partition proceedings, then, of course, consequences will ensue. However, this does not mean that till the suit land is partitioned, the petitioners herein should be restrained from raising construction over the parcel of the suit land in their possession.” CMPMO No.522/2017, decided on 29.11.2018 titled Chanchal Kumar Vs. Prem Parkash & Anr. was a case where the plaintiff was one of the co-sharers over the suit land. 18  ( 2026:HHC:13550 ) He raised construction and filed suit for a prohibitory injunction to restrain the respondents from raising construction on the vacant portion of land. The Court held that:- “…..Once, the plaintiff himself raised construction over one portion of the land, it is not understood, how he could raise an objection, if any, qua the construction on the other portion of land, by the defendants, who are admittedly co- owners of the suit land to the extent of one-half share. Needless to say, the applicant, while seeking relief of injunction is required to show that he/she has a prima facie case in his/her favour and balance of convenience also lies in his/her favour, but, in the instant case, aforesaid basic ingredients/conditions are totally missing, rather, very conduct of the plaintiff suggests that he wants to take advantage of the situation.” 35. This position was reiterated in Jai Singh VS Rajeev Latest HLJ 2023 (HP) (1) 162 wherein it was observed: “19. The fact that in past also different coowners including the parties to suit have raised construction also weakens the case of plaintiffs. When plaintiffs had no objection when the co- owners had raised construction on different parts of the joint land in the same khata, they must come out with special reasons to raise objections against construction being raised by the defendant. Another fact, which cannot be ignored is that there is another structure on suit land being used as “Panchayat Ghar.” At the time of its construction again there was no objection. Admittedly, no other co-owners have raised any objection to the construction being raised by the defendant. The conduct of plaintiffs smacks of some ulterior purpose than the assertion of any legal right.” 19  ( 2026:HHC:13550 ) 36. The perusal of the aforesaid judgments shows that a co-sharers cannot seek an injunction against a co-sharer ordinarily. The Judgment in Ashok Kumar vs. Murtu Devi (supra) specially laid down the principle when an injunction can be granted in such like cases. In the case of Ashok Kumar vs. Murtu, it has been held that co-owners is not entitled to an injunction restraining other co-owners 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 and adverse to the interest of the co-owner. It has further been held that mere making of the construction or improvement in the common property does not amount to ouster. In the present case also, the suit land is a big chunk of land and the share of the present petitioner comes to about to 17.17 bighas and the share of the present respondent is also to the similar extent. 37. The learned counsel for the petitioner has vehemently submitted that he is raising construction on a very small portion of the land and on account of the fact that the present respondent has already utilized the suit land, therefore, the plea as being raised that the land is joint amongst the parties and till 20  ( 2026:HHC:13550 ) the time partition take place, the present petitioner be injuncted from raising the construction is not sustainable. Once the present respondent, himself has raised the construction over the suit land and he is running dairy farm and has constructed polly houses and getting commercial gain out of the suit land, therefore, it cannot be said that by raising the construction by the present petitioner it will amount to ouster of the present respondent or that it will amount to diminishing the value of the suit property. The First Appellate Court has not appreciated the point in controversy in its real perspective and without analyzing the principle of joint land, especially the conduct of the present respondent, has allowed the application of the plaintiff and has injuncted the defendant from raising the construction. 38. In view of the law as laid down by this court, especially, in view of the fact that since the plaintiff himself has utilized and occupied the suit land, therefore, he cannot injunct the plaintiff/ petitioner from raising construction during the pendency of the suit. 39. Consequently, there is merit in the present petition and the same is allowed. After setting aside the judgment dated 21  ( 2026:HHC:13550 ) 23.11.2017, passed by the learned First Appellate Court, the order as passed by the learned trial Court is restored. 40. All the pending miscellaneous application(s) if any, shall also stands disposed off. (Romesh Verma) Judge April 24, 2026 (Nisha)