Order 39 Rules 1 & 2 CPC | Co-Sharer Who Constructed on Joint Land Cannot Seek Injunction Against Others: Himachal Pradesh High Court

“The injunction being an equitable relief, the person seeking an injunction must come with clean hands... 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 the respondents.” — In a seminal ruling, the High Court of Himachal Pradesh, comprising Justice Ajay Mohan Goel, dismissed a petition seeking to restrain co-sharers from raising construction on joint land, reinforcing the principle that a co-owner who has already built on the property cannot claim equitable relief against others doing the same.

The Controversy: Status Quo vs. Right to Build

The case arose from a civil suit filed by the petitioner (Plaintiff), Bir Singh, seeking a permanent prohibitory injunction against the respondents (Defendants), Tirath Raj and another. The Plaintiff alleged that the suit land was jointly owned and that the Defendants were raising unauthorized construction which threatened the structural integrity of his residential house and boundary wall.

Initially, the Trial Court granted an interim order directing the parties to maintain the status quo, accepting the Plaintiff’s plea that the construction might cause damage and change the nature of the suit land. However, the Appellate Court reversed this decision, holding that the Plaintiff, having already constructed his house on the best portion of the joint land, could not restrain the Defendants from utilizing their share. The Plaintiff challenged this reversal before the High Court.

“Mere making of construction or improvement of, in, the common property does not amount to ouster.”

No Injunction Without Proof of Ouster or Injury

Justice Goel, upholding the Appellate Court’s decision, conducted an exhaustive review of the jurisprudence regarding co-sharers. The Court reiterated the settled legal position that a co-owner is not entitled to an injunction restraining another co-owner from using the common property unless the act amounts to ouster or is prejudicial to the interest of the co-owner out of possession.

Relying on the landmark judgment in Ashok Kapoor v. Murthu Devi (2016), the Court observed that mere construction does not amount to ouster. For an injunction to be granted, the plaintiff must prove that the construction would diminish the value or utility of the property or cause material injury. In this case, the Plaintiff failed to plead specific injury or prove that the construction exceeded the Defendants' share.

The Doctrine of "Clean Hands"

A pivotal aspect of the judgment was the application of the equitable maxim: "He who seeks equity must do equity." The Court noted that the Plaintiff had already raised a residential house on the joint land. Citing Kalawati v. Netar Singh (2016), the Bench held that a party who has altered the nature of the land for their own benefit is estopped from preventing other co-sharers from doing the same.

“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 the respondents.”

The Court found that the Plaintiff’s conduct disentitled him to the discretionary relief of an injunction. The judgment emphasized that equity cannot be used to perpetuate an unfair advantage where one co-sharer enjoys the property while denying the same right to others.

Easementary Rights on Joint Land

The Plaintiff had also argued that the construction threatened the lateral support of his wall and violated his privacy. The High Court rejected these contentions, clarifying a significant point of law regarding easements.

The Court held that the concept of easement requires a dominant and a servient heritage owned by different persons. On joint land, where every co-sharer has an interest in every part of the property, no right of easement (such as lateral support) can arise. Citing Marghabhai Vallavbhai v. Motibhai Mithabhai, the Court ruled that a co-owner cannot claim easementary rights against another co-owner on joint property. Furthermore, regarding the plea of privacy, the Court relied on Anguri Devi v. Jiwan Dass, stating that in the absence of a pleaded and proved customary right, a neighbor cannot be restrained from opening windows or doors.

The High Court dismissed the petition, vacating any interim relief and affirming the Appellate Court's order. The Trial Court was directed to proceed with the suit uninfluenced by these observations, but the interim impediment against the Defendants' construction was removed.

Date of Decision: 29/12/2025