Co-Owner Cannot Be Restrained From Constructing On Undivided Joint Land In Absence Of Proven Prejudice: Himachal Pradesh High Court
Safiya Malik
The High Court of Himachal Pradesh Single Bench of Justice Ajay Mohan Goel has dismissed a petition challenging an appellate order that set aside a trial court direction to maintain status quo over construction on joint land. The petitioner, a co-sharer, sought to restrain another co-sharer from building, alleging interference with the property and damage to his house and wall. Upholding the appellate court, the Bench held that undivided co-ownership alone does not justify injuncting a co-owner, so long as the construction does not amount to prejudicial ouster or reduce the other co-owners’ rights. The Court observed that a co-owner cannot be stopped “merely because he is a co-owner” absent such ouster. Interim orders were vacated, and the civil suit was left to proceed.
A relief of mandatory injunction was also sought. The petitioner alleged that the respondents had started unauthorized construction, interfered with the suit land, and attempted to change its nature and possession. It was further alleged that excavation undertaken by the respondents was damaging the petitioner’s residential house and boundary wall.
Along with the suit, an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed. By an interim order, the trial court directed the parties to maintain status quo regarding construction, nature, and possession of the suit land. Aggrieved, the respondents preferred an appeal.
The appellate court allowed the appeal and set aside the status quo order, holding that no lawful partition was proved, that the parties continued as co-sharers, and that a co-sharer could not ordinarily be restrained from raising construction on joint land in the absence of pleaded and proved prejudice, ouster, or enforceable legal rights such as easement. The petitioner challenged this appellate order before the High Court.
The High Court examined the reasoning of both courts and recorded that the appellate court had correctly appreciated the law governing co-sharers. It noted that “there was no material on record that indeed a family partition had taken place between the parties and the factum of alleged oral partition was not supported by the revenue records.”
The Court observed that revenue entries merely showed separate possession as co-sharers and that “mere occupation of the property separately by a co-sharer did not amount to partition.” Referring to earlier precedents, it was recorded that “mere arrangement regarding the continuation of land cannot be termed as a partition.”
On the issue of injunction, the Court stated that settled law provides that “a co-owner is not entitled to an injunction restraining another 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.” It further recorded that “mere making of construction or improvement of, in, the common property does not amount to ouster.”
With respect to alleged damage to the petitioner’s house and boundary wall, the Court observed that no easementary right was pleaded or proved and that “the land in a burdened state does not enjoy a right of support in the absence of an easement of support.” It was also recorded that “no custom recognizing the right of privacy was pleaded or proved.”
The Court concluded that the trial court erred in granting interim protection as “the ingredients for grant of injunction were not met.”
The Court directed that “this petition is dismissed. The findings returned by this Court in this case are only for the adjudication of this petition and the learned Trial Court shall proceed with the Civil Suit uninfluenced by any observation made by this Court in this judgment. Interim order, if any, stands vacated. Pending miscellaneous application(s), if any, also stand disposed of.”
Advocates Representing the Parties
For the Petitioner: Ms. Madhurika Sekhon, Advocate
For the Respondents: Mr. Sanjeev Kuthiala, Senior Advocate, with Ms. Tamanna Sharma, Advocate
Case Title: Bir Singh v. Tirath Raj & Another
Neutral Citation: 2025: HHC:45673
Case Number: CMPMO No. 389 of 2023
Bench: Justice Ajay Mohan Goel
