Co-Sharer In Separate Possession Can't Be Restrained From Construction On Joint Land In Absence Of Proven Prejudice: HP High Court

The Himachal Pradesh High Court has held that a co-sharer cannot ordinarily be restrained from raising construction on joint land merely because the property remained undivided, provided the construction does not amount to ouster or cause detriment to the other co-owners

A bench of Justice Ajay Mohan Goel remarked that: "A co-owner is not entitled to an injunction restraining another co-owner…merely 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".

The Court reiterated the settled principles that the mere making of a construction or improvement in the common property does not amount to ouster.

The plaintiff, Bir Singh, filed a Civil Suit seeking a permanent prohibitory injunction to restrain the defendants from raising any construction on the suit land, which was jointly owned by the parties.

The plaintiff alleged damage to his residential house and boundary wall due to digging by the defendants and therefore also sought interim relief under Order 39 Rules 1 and 2 CPC.

A status quo order was granted by the Trial Court. However, the Appellate Court set aside this order on the ground that the plaintiff failed to establish any legal ground to restrain a co-sharer from construction on joint land.

The High Court upheld the Appellate Court's finding that the plea of family or oral partition was unsupported by revenue records. The Court observed that mere separate possession or enjoyment of parcels of land did not amount to a legal partition.

The Court concluded that "Mere occupation of the property separately by a co-sharer does not amount to partition…Mere arrangement regarding the continuation of land cannot be termed as a partition".

Furthermore, regarding the plaintiff's claim of damage to his wall, the Court held that in the absence of a right of easement, which cannot be claimed on joint land, no action lies.

The Bench also invoked the equitable principle that "he who seeks equity must do equity", noting that the plaintiff had himself raised construction on the joint land and thus could not restrain the defendants.

Case Name: Bir Singh v/s Tirath Raj & another

Case No.: CMPMO No. 13958 of 2024

Date of Decision: 29.12.2025

For the Petitioner: Ms.Madhurika Sekhon,Advocate.

For the Respondents: Mr. Sanjeev Kuthiala, Senior Advocate, with Ms. Tamanna Sharma, Advocate

Click Here To Read/Download Order