High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH AT

SHIMLA

CMPMO No. 78 of 2021

Reserved on:19.4.2021

Decided on: 24.4.2021

____________________________________________________________

Smt. Besru Devi ……...Petitioner

Versus

Sh. Bhoop Ram and others. …Respondents

____________________________________________________________

Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting

1? Yes.

____________________________________________________________

For the petitioner: Mr. G.D.Verma, Senior Advocate

with Mr. B.C.Verma, Advocate.

For the respondents: Mr. Bhupinder Gupta, Senior

Advocate with Mr. Ranvir Chauhan,

Advocate, for respondents No.1 and

2.

____________________________________________________________

Sandeep Sharma, J.

Instant petition filed under Art. 227 of the

Constitution of India is directed against the judgment dated

15.3.2021 passed by learned District Judge, Shimla, District

Shimla, H.P., in CMA No.29-S/14 of 2020, reversing the

order dated 3.9.2020 passed by learned Civil Judge, Court

No.7, Shimla, District Shimla, Himachal Pradesh, whereby

CMA No. 719 of 2019, having been filed by the applicant-

plaintiff ( hereinafter ‘plaintiff’) under Order 39 Rules 1 and 2

CPC, restraining the respondents-defendants (hereinafter,

Whether reporters of the Local papers are allowed to see the judgment? .

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‘defendants’) from causing any damage or interfering, selling,

alienating, encumbering and mortgaging any portion of the

suit land during the pendency of the main suit was allowed.

2. Precisely, the facts of the case as emerge from the

material available on record are that the plaintiff claiming

herself to be co-owner alongwith the defendants, filed suit for

declaration to the effect that the Relinquishment

Deed/Release Deed No. 1604, dated 9.9.2013 registered in

the office of Sub Registrar, Shimla in favour of defendants

No.1 and 2 is illegal, wrong, void and inoperative against the

right, title and interest of the plaintiff as the same has been

procured unlawfully without her knowledge and consent.

Plaintiff averred in the aforesaid suit that about three years

back, defendants No.1 and 2 in collusion with other

defendants took her to Tehsil Office on the pretext of getting

the said land partitioned. In the Tehsil Office, her thumb

impression was taken on different documents, which were

neither read over nor explained to her. The plaintiff remained

under bona-fide belief that the documents were pertaining to

the partition and in due course of time, land would be

separated/partitioned. However, after about 2 ½ years, on

her inquiry, it was disclosed to her that land stands already

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transferred in favour of defendants No.1and 2. She alleged

that she never intended to transfer her share in favour of

defendants No.1 and 2 and they, taking undue advantage of

her poverty, illiteracy and helplessness , wrongly and

fraudulently executed the relinquishment deed in connivance

with defendants No. 3 to 8, and as such, same may be

declared as null and void. Apart from aforesaid relief, plaintiff

also claimed that the defendants be restrained from

interfering with her joint ownership and possession over the

suit land situate at villages Chamyana and Shahnan.

3. Alongwith the aforesaid suit, plaintiff filed an

application under Order 39 Rule 1 and 2 CPC stating therein

that during winter vacation in the year 2020, the defendants

started raising construction on the valuable portion of the

land, for which they dug pits and also raised retaining walls.

Plaintiff claimed that in case defendants are permitted to

raise construction, she would be deprived of the best portion

of the land. Plaintiff averred in the application that the

construction is being raised by the defendants on Khasra

No.167, measuring 00 -36-18 hectares, Khata/Khatauni

No.8min/17min, situated at Mohal Shahnan, Tehsil Shimla

(Rural), District, Shimla, H.P.

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4. Defendants by way of written statement as well as

reply to the stay application refuted the case of the plaintiff.

Defendants claimed before the court below that the plaintiff

voluntarily executed the relinquishment deed by

relinquishing her share in the land situated at village

Chamyana and Shahnan in favour of defendants No. 1 and 2.

Defendants No.1 and 2 while specifically denying the plea of

the plaintiff that her thumb impression was required for

getting her share separated, submitted before the court below

that deed was executed jointly by plaintiff and defendants No.

3 to 8 and the contents of the same were read over and

explained to her before she put the thumb impression.

Defendants No.1 and 2 specifically denied the allegation of

fraud, if any, played by them, while executing the

relinquishment deed. Learned trial Court vide order dated

3.9.2020 allowed the application under Order 39 Rule 1 and

2 CPC and directed both the parties to maintain status quo

qua the nature, possession and ownership over the suit land

on the ground that plaintiff has challenged the

relinquishment deed executed in favour of defendants No.1

and 2, therefore, a strong prima-facie case is made out.

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5. Being aggrieved and dissatisfied with the aforesaid

status quo order passed by learned trial Court, defendants

No.1 and 2 filed an appeal under Order 43 Rule 1(r ) of CPC

in the court of learned District Judge, inter-alia on the

ground that the plaintiff has no right, title or interest qua the

suit property because she ha d voluntarily and willingly

relinquished her share in the joint land in their favour.

Besides above, defendants No.1 and 2 claimed before the

court below that since they have no residential house so they

started raising the construction, they have already spent

huge amount and irreparable loss would be caused to them

in case order of status quo granted by the leaned court below

is not vacated.

6. Learned Appellate Court on the basis of the

material adduced on record allowed the appeal and set aside

the order dated 3.9.2020 passed by learned trial Court. In the

aforesaid background, plaintiff has approached this Court in

the instant proceedings, praying therein for restoration of

order dated 3.9.2020 passed by learned trial Court after

setting aside the judgment dated 15 .3.2021 passed by

learned District Judge, Shimla, H.P.

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7. I have heard the learned counsel for the parties and

perused the material available on record.

8. Before grant/refusal of injunction, if any, the court

is required to satisfy itself that the party praying for the relief

has a prima facie case and balance of convenience is also in

its favour. While granting injunction, court is also required to

consider whether refusal to grant injunction would cause

irreparable loss/injury to such party and irreparable loss/

injury, if any, can be compensated in terms of money or not.

Similarly, court while deciding balance of convenience is also

required to weigh protection of the plaintiff’s right against

need for protection of defendant’s right or infringement of

right. Apart from aforesaid well established parameters/

ingredients, conduct of the party seeking injunction is also of

utmost important, as has been held by Hon'ble Apex Court in

case M/S Gujarat Bottling Co.Ltd. & Ors. v. The Coca

Cola Co. & Ors., AIR 1995 2372. If a party seeking

injunction fails to make out any of the three ingredients,

court should be reluctant to grant injunction. Phrases,

“prima facie”, “ balance of convenience” and “irreparable

loss” came to be interpreted by Hon'ble Apex Court in case

titled as Mahadeo Savlaram Shelke v. The Puna Municipal

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Corpn., J.T. 1995(2) S.C. 504, wherein Hon’ble Apex Court

relying upon its earlier judgment in Dalpat Kumar v. Prahlad

Singh, (1992) 1 SCC 719, observed that the phrases "prima

facie case", "balance of convenience" and "irreparable loss"

are not rhetoric phrases for incantation but words of width

and elasticity, intended to meet myriad situations presented

by men's ingenuity in given facts and circumstances and

should always be hedged with sound ex ercise of judicial

discretion to meet the ends of justice. The court would be

circumspect before granting the injunction and look to the

conduct of the party, the probable injury to either party and

whether the plaintiff could be adequately compensat ed if

injunction is refused. Though, existence of prima facie right

is a condition for the grant of temporary injunction, but

prima facie case is not to be confused with prima facie title

which has to be established on evidence at the trial.

Satisfaction that there is a prima facie case is not sufficient

to grant injunction, rather court considering prayer for

injunction is under obligation to satisfy itself that non-

interference by the court would result in "irreparable injury"

to the party seeking relief and that there is no other remedy

available to the party except one to grant injunction. The

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court while granting or refusing injunction should exercise

sound judicial discretion to find the amount of substantial

mischief or injury, which is likely to be caused to the parties

if the injunction is refused and compare it with that which is

likely to be caused to the other side if the injunction is

granted. If on weighing competing possibilities or

probabilities of likelihood of injury and if the court considers

that pending the suit, the subject matter should be

maintained in status quo, an injunction would be issued.

9. Now, guided by aforesaid legal parameters required

to be kept in mind by the court while considering the prayer

for injunction, this Court would make an effort to find out,

“whether plaintiff has been able to prove ingredients for grant

of temporary injunction or not?”

10. True, it is that as per jamabandi for the year 2008-

2009, plaintiff and defendants stand recorded as co-owners

in the land at Muhal Shahnan and Muhal Malyana, but it is

not in dispute that aforesaid entry in the revenue record

subsequently came to be changed on account of execution of

relinquishment deed, allegedly executed by plaintiff and

defendants No.3 to 8 in favour of defendants No.1 and 2. Vide

aforesaid relinquishment Deed No. 1604, dated 9.9.2013

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plaintiff alongwith defendants Nos. 3 to 8 allegedly

relinquished her share in the property in favour of defendants

No.1 and 2. At the time of consideration of application under

Order 39 Rule 1 and 2 CPC , factum with regard to

relinquishment deed dated 9.9.2013 stood recorded in the

revenue record. Pursuant to aforesaid relinquishment Deed

dated 9.9.2013 mutation of land stood attested in favour of

defendants No.1 and 2 and as such, trial court ought not

have put much reliance upon the Jamabandi for the years

2008-09, while inferring/ascertaining prima face case, if any,

in favour of the plaintiff.

11. True, it is that the jamabandi carries presumption

of truth unless rebutted, but as has been taken note

hereinabove, aforesaid jamabandi for the year 2008-2009 had

already lost its relevance on account of mutation of land

attested in favour of defendants No.1 and 2 pursuant to

execution of relinquishment deed dated 9.9.2013. No doubt,

very factum with regard to execution of relinquishment deed

dated 9.9.2013 is under clout on account of challenge made

to the same by the plaintiff, but fact remains that pursuant

to aforesaid relinquishment deed, mutation of land in

question stood attested in favour of defendants No.1 and 2

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and as such, trial Court blow erred in concluding that

jamabandi for the year, 2008-2009 discloses prima-facie case

in favour of the plaintiff. Plaintiff though by way of suit has

laid challenge to the relinquishment Deed on the ground of

fraud and misrepresentation, but such allegation of fraud

and misrepresentation are yet to be proved in accordance

with law. Mere filing of suit for declaration that the

relinquishment deed is null and void on account of fraud and

representation is not sufficient to conclude/infer prima-facie

case, rather to infer prima-facie case court below is/was

required to see that who is in possession of the suit property

against which injunction is being sought.

12. Order 39 CPC regulates grant of tempor ary

injunction and interlocutory orders. Order 39, Rule 1 CPC

talks about the cases in which temporary injunction can be

granted by the Court. The following are the pre-requisites for

the grant of injunction:

(a) When any property in dispute in a suit is in

danger of being wasted, damaged or alienated

by any party to the suit , or wrongfully sold in

execution of the decree or

(b) when there is a threat from the defendant, or

he intends, to remove or dispose of his

property with a view to defrauding his

creditors,

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(c) when there is threat from the defendants to

the plaintiff of his dispossession or otherwise

to cause injury to him in relation to any

property in dispute in the suit.

13. Prima-facie case, balance of convenience and

irreparable loss or injury are three main factors to be kept in

mind while considering the prayer for grant of injunction.

Existence of aforesaid three ingredients is not only

mandatory, rather they all should co-exist.

Interestingly, in the case at hand, plaintiff besides omitting to

furnish specific details of the suit land, has also not made

any prayer for injunction in the main suit, rather has simply

claimed in the suit the relief of declaration that the

relinquishment deed/release deed dated 9.9.2013 be declared

illegal, null and inoperative and further the defendants be

restrained from interfering with her joint ownership and

possession.

14. Order 7 Rule 3 CPC specifically provides that when

the subject matter in suit is immovable property, it is

necessary to give specific details of the property, so that it

becomes easy to identify the same. In case the property is

identified by the boundaries or numbers in the record of

settlement and survey, it is compulsory to furnish complete

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details of the suit property in the plaint. In the case hand,

plaintiff has simply given description of the relinquishment

deed and there is no mention, if any, of the property and as

such, plaint can be said to be hit by Order 7 Rule 3 CPC.

15. Mr. G.D.Verma, learned Senior counsel

representing the plaintiff while making this Court to peruse

the relinquishment deed vis-à-vis prayer made in the suit,

contended that since entire details with regard to description

of the property stand recorded in the relinquishment deed, it

would be too technical to conclude that plaint of plaintiff is

hit by order 7 Rule 3 CPC. Even if aforesaid submission made

by learned Senior Counsel is presumed to be correct, relief of

interim injunction prayed for in the application under Order

39, rules 1 and 2 CPC, cannot be granted, especially when

such relief has been not claimed in the main suit. There is

another aspect of the matter that the relinquishment deed,

which is now being sought to be declared as null and void

was allegedly executed on 9.9.2013 by the plaintiff and

defendants No. 3 to 8. For more than 2 ½ years plaintiff took

no steps, if any, for getting the aforesaid Relinquishment

Deed annulled on account of its being procured by fraud and

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misrepresentation and there is no plausible explanation

available on record qua the aforesaid delay.

16. Leaving everything aside, the plaintiff at the time of

filing the suit at hand in the year, 2016 chose not to file

application under Order 39 Rule 1 and 2 CPC, praying

therein to restrain the defendants from raising any

construction over the suit land, rather such application on

her behalf came to be filed when her application under

section 65 of the Right to Fair Compensation & Transparency

under Land Acquisition, Rehabilitation & Re-Settlement Act,

2013, praying therein to not to release any amount of

compensation in favour of defendants No. 1 and 2 came to be

rejected by Sub Divisional Collector- cum-Land Acquisition

Collector (Rural) Shimla vide order dated 5.5.2018. Though,

Mr. G.D.Verma, learned Senior Counsel representing the

plaintiff vehemently argued that since plaintiff remained

under impression that the papers got signed by defendants

No.1 and 2 in collusion with defendants No.3 to 8 were for

effecting partition of the land and not for relinquishment deed

coupled with the fact that no construction was being raised

by defendants on the suit land, plaintiff purposely not filed

application under Order 39 Rule 1 and 2 CPC alongwith the

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suit filed by her in the year, 2016, but such plea of learned

Senior counsel otherwise deserves to be rejected being totally

contrary to the record.

17. Careful perusal of petition under Section 65 of the

Right to Fair Compensation and Transparency unde r Land

Acquisition, Rehabilitation and Resettlement Act 2013 filed

by the plaintiff (Annexure P-11), reveals that factum with

regard to execution of relinquishment deed and an intention

of the defendants to grab the land of the plaintiff was very

much in the knowledge of the plaintiff in the year, 2017, but

even then she chose not to file an application under Order 39

Rule 1 and 2 CPC in the suit for declaration filed by her in

the year, 2016. It is only after rejection of aforesaid

application filed by the plaintiff under Section 65 of Right to

Fair Compensation and Transparency under Land

Acquisition, Rehabilitation and Resettlement Act 2013, that

the plaintiff filed application under Order 39 Rules 1 and 2

CPC. Moreover, the plaintiff in her application has specifically

averred that in order to raise construction defendants No.1

and 2 have not only raised retaining wall, but also dug pits

and as such, defendants No. 1 and 2 are right in contending

that fact of raising construction over the suit land was very

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much in the knowledge of the plaintiff prior to filing of the

suit.

18. Careful perusal of photographs placed on record

itself suggest that the defendants have already raised

construction over the suit land by spending huge amount.

Mr. G.D.Verma, learned Senior Counsel representing the

plaintiff while placing reliance upon the following judgments

i.e. Ballo vs. Paras Ram, AIR 1972, Himachal Pradesh 33,

Smt. Kartari vs. Kewal Kirshan and others, AIR 1972

H.P.117, Smt. Samitra Devi versus Sukhwinder P al, AIR

1990 Punjab and Haryana, 23, Brundaban Misra vs. Ishwar

Swain and others, AIR 1983 Orissa 172, Ajmer Singh and

others versus Atma Singh, AIR 1985 Punjab and Haryana,

315 and Girraj Prasad versus Smt. Tribeni Devi, AIR 2004

Allahabad 348, vehemently argued that if allegations with

regard to fraud and undue influence in execution of a

particular document are levelled by a rustic villager or

illiterate person, burden is upon defendants to prove its

validity. However, having carefully perused the aforesaid

judgments in its entirety, this Court has no hesitation to

conclude that same are not applicable in the present facts

and circumstances of the case. No doubt, as per aforesaid

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judgments rendered by various constitutional courts, onus is

upon the party against whom, allegations of undue influence

and fraud are levelled, especially when such allegations are

levelled by a rustic villager and an illiterate lady but such

onus, if any, upon the defendant is to be discharged during

trial by leading cogent and convincing evidence and definitely

not at the time of contesting the application for interim

injunction filed under Order 39 Rules 1 and 2 CPC. Merely,

the fact that plaintiff stood recorded as co-owner in the suit

land is not sufficient to deprive or suppress the right of other

co-owners to utilize the land by raising construction. Even if

the case of the plaintiff, as projected in the main suit and the

application under Order 39 Rules 1 and 2 CPC is accepted on

its face value, she can be said to be one of the co-owner

alongwith other co-owners that too after cancellation of

relinquishment deed. But in the case at hand record reveals

that even prior to execution of relinquishment deed

possession over Khasra No. 174 was with defendants No.1

and 2.

19. Mr. G.D.Verma, learned Senior Counsel

representing the plaintiff while placing reliance upon the

judgment rendered by Hon’ble Apex Court in Skyline

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Education Institute (India) Private Limited versus S.L.

Vaswani and another (2010) 2 Supreme Court Cases 142 ,

contended that once the Court of first instance refuses to

grant relief of temporary injunction , appellate Court should

be loath to interfere. Mr. Verma, further contended that since

order granting injunction passed by trial Court was based

upon objective consideration of the material placed before it

and supported by cogent reasons, learned District Judge

ought not have interfered with the same. Though, having

read /perused the aforesaid judgment in its entirety, this

Court sees no quarrel with the aforesaid proposition of law

laid down by Hon’ble Apex Court, but as per aforesaid

judgment passed by the court, appellate court should be

loath to interfere in order granting injunction passed by trial

Court in case same is based upon the objective consideration

of the material placed before the Court and same is

supported by cogent reasons. However, in the case at hand,

careful perusal of order granting injunction passed by trial

Court by no stretch of imagination can be said to be based

upon objective consideration of the material placed before the

Court. Had trial Court made objective consideration of the

material made available to it, it would have not placed much

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reliance upon the jamabandi for the year, 2008 -2009,

especially when entry made in the aforesaid jamabandi stood

altered in subsequent jamabandi on account of mutation

entered in the name of defendant No.2 on the basis of

Relinquishment Deed allegedly executed by the plaintiff.

Similarly, mere allegation of plaintiff that Relinquishment

Deed is obtained by defendants No.1 and 2 by fraud and

misrepresentation was not sufficient for the trial court below

to pass injunction order, especially when such allegation of

plaintiff is yet to be proved in accordance with law. Once

factum with regard to possession of defendants Nos. 1 and 2

over the suit land pursuant to execution of relinquishment

deed was not in dispute, trial court ought not have been

swayed by the entry of joint ownership, if any, made in the

Jamabandi for the years 2008-09, especially when such entry

subsequently stood altered. Mere allegation of fraud in

execution of relinquishment deed cannot be said to be

sufficient ground for the court below to grant relief of interim

injunction during the pendency of the trial. Once appellate

court was convinced that order granting injunction is not

based upon objective consideration of the material placed

before the trial Court, it rightly interfered in the same.

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20. This Court in Ashok Kapoor versus Murtu Devi

2016(1) Shim.L.C.207, which has been otherwise taken note

by learned District Judge in its impugned judgment , has

dealt with the rights and liabilities of the co-owners. As per

aforesaid judgments, 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. Most importantly,

in the aforesaid judgment, it has been held that mere making

construction or improvement of in, the common property

does not amount to ouster, rather 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 has right to

claim injunction to prevent the diminution of the value and

utility of the property. Before injunction is issued, plaintiff is

required to establish that he/she 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.

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21. In view of aforesaid law taken into consideration, no

error, if any, can be found with the finding returned by

passed by learned District Judge that appellants/defendants

No. 1 and 2 cannot be disentitled from raising construction

on the joint land unless and until the other co-owner is being

prejudiced by their act. Since relinquishment deed is yet to

be cancelled coupled with t he fact that possession of

defendants No.1 and 2 over Khasra No.167 even before the

execution of relinquishment deed stands established, raising

of construction over a small piece of land by spending huge

amount by defendants No.1 and 2 , cannot be said to be

detrimental to the interest of the plaintiff.

22. Having perused the material available on record,

this Court finds that none of basic ingredients i.e. prima facie

case, balance of convenience and irreparable loss/injury,

exits in favour of the plaintiff and as such, she is not entitled

to discretionary relief. It is equally settled by now that grant

of temporary injunction cannot claimed by the party as a

matter of right and same cannot be denied by the court

arbitrarily, rather discretion in this regard is to be exercised

by a Court, on the basis of principles as have been

enunciated in the various judgments passed by Hon’ble Apex

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Court as well as this Court. Once in the case at hand, it

stands prima-facie established that defendants No.1 and 2 is

in possession of the land qua which injunction is sought, no

interference is called for in the impugned judgment passed by

learned District Judge, which otherwise appears to be based

upon the proper appreciation of material available on record.

23. Consequently, in view of above, judgment passed by

learned District Judge, Shimla is upheld. The petition at

hand stands dismissed alongwith all pending applications.

(Sandeep Sharma)

Judge

April 24, 2021

(shankar)

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