On a suit filed for permanent prohibitory injunction order for constructing a hotel on a joint land without the consent of co-owners, The High Court held that the onus is on the plaintiff to prove on record the substantial loss or injury or even mere loss or injury since the absence of consent cannot be a straightjacket formula for all case. This judgment was passed in the case of Chaman Lal vs. Smt. Dropti and others [CMPMO No.200/2020], by a Single Bench consisting of Hon’ble Justice Vivek Singh Thakur.
The petitioner filed a suit against the respondents, seeking for a permanent prohibitory injunction restraining defendant no.1 from encroaching upon the valuable portion and dispossessing the plaintiff by raising construction of hotel over the suit land. There was also another prayer to restrain defendant 2 and 3 from issuing NOC to defendant 1 on the basis of illegal Mauka Tatima. Plaintiff and Defendant no.1 were joint owners, in possession of the suit land and the land had not be fully partitioned between the co-owners and defendant no.1 w/o consent of the plaintiff started building the hotel. Plaintiff also filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, seeking temporary injunction, restraining defendant No.1 from raising any sort of unlawful construction of the hotel on the suit land and from occupying more valuable portion thereof, by dispossessing the plaintiff from his share in the suit land and also to restrain defendants 2 and 3 from issuing NOC.
The High Court heard the contentions of both the parties before giving the present judgment. Firstly, it observed that on the case of Ashok Kapoor relied upon by the plaintiff, the principle laid down was that mere fact that the parties are co-owners, joint-owners, etc. cannot be the sole criterion for refusing injunction. In the present matter the plaintiff had not disclosed the complete facts with regards to the entire property and selected only three Khasra numbers. Further, no evidence was provided by the plaintiff to support that defendant no.1 caused injury or loss due to the construction of hotel.
The High Court went on to further hold that being in a Joint ownership, the absence of consent is a relevant fact for granting stay in suit filed by a co-owner but it cannot be a universal formula to grant stay in every case. at the same time, construction already raised by plaintiff on the joint land cannot disqualify the plaintiff from obtaining a stay against the construction being raised by one or more of the co-owners/co-sharers. However, in such a case the onus is on the plaintiff to establish on record the substantial loss or injury being caused by undertaking such construction.
The High Court concluded by holding, “In view of the above discussion and the case law relied upon by the parties, present petition, being devoid of merit, is dismissed.”