JAWALA DEVI Vs. GIAN CHAND

JUDGEMENT

(1.) THE plaintiff/applicant/petitioner had filed an application under Order 39 Rule 1 and 2 of the CPC before the learned trial Court for restraining the defendants/respondents from raising construction over the suit land held in co -ownership inter -se them. The suit land, hence is, un -partitioned. The suit land yet being un -partitioned none of the co -owners can claim right of exclusive possession over any portion of the suit land held in joint ownership inter -se them. The learned trial Court had afforded the relief of injunction in favour of the applicant/petitioner. The defendants resisted the findings rendered by the learned trial Court before the learned Additional District Judge, Ghumarwin, who on consideration of the entire material laid before him set -aside the order rendered by the learned trial Court in favour of the petitioner/applicant. The applicant/plaintiff/petitioner is aggrieved by the said order.

(2.) HOWEVER , a perusal of the record demonstrates that the suit land though yet is un -partitioned, the predecessor -in -interest of the plaintiff/applicant has utilized his entire share in the joint suit land. In the face of utilization of the entire share in the joint suit property by the applicant/plaintiff, it would be inequitable to restrain the defendants -respondents from raising construction in the joint suit land, when they have not been demonstrated to be while proceeding to do so to have exceeded their share in the suit property. The learned First Appellate Court in declining the relief of injunction to the plaintiff -appellant -petitioner has done so on an incisive consideration of the material on record which demonstrates that its refusal when disclosing the fact of non existence of a good and prima facie case in favour of the plaintiff was hence tenable also when given the fact that the predecessor -in -interest of the plaintiff, has prior to the effort of the defendants to utilize a portion of the suit land to the extent of their share in it, already utilized the suit land in proportion to his share, hence irreparable loss or injury would not accrue to the plaintiff in case relief of injunction is refused. Rather, it would accrue to the defendants/respondents. Moreover, when hence balance of convenience would be in case relief of injunction is granted be also loaded against the defendants -respondents. In aftermath, in the refusal of injunction by the learned appellate Court to the appellant there, is, no apparent material illegality or impropriety committed by it. Accordingly, the impugned order is affirmed and maintained. The petition is dismissed. No costs.