Mewa Ram v. Sawan Singh Others

appeal preferred by the plaintiff under Order XLIII Rule 1(r) CPC has been partly allowed and the order of the learned Trial Court declining ad interim injunction has been modified.

#2. The appellate Court has directed that the petitioners-defendant(s) shall not raise any further construction beyond what existed on the date of the order, nor alter the nature of the suit property or create any third-party interest during pendency of the suit, while clarifying that the construction already existing shall remain subject to the final outcome of the partition proceedings and shall not confer any special equity upon the petitioners.

#3. Learned counsel for the petitioners submits that the appellate Court has erroneously interfered with the discretionary order passed by the learned Trial Court. It is argued that the petitioners are co-sharers in possession and are entitled to enjoy the property. It is further contended that the CR-2652-2026 2026:PHHC: 090080 construction had already substantially progressed and, therefore, no injunction ought to have been granted.

#4. I have heard learned counsel for the petitioners and have perused the record. The revision petition is found to be devoid of merit.

#5. It is not disputed that the suit property continues to be joint and un-partitioned. The plaintiff has instituted a suit seeking partition by metes and bounds along with consequential relief of permanent injunction. The controversy, therefore, essentially concerns preservation of the joint estate till adjudication of the rights of the parties.

#6. The law relating to rights of co-sharers is fairly well settled. Every co-sharer is deemed to be owner of each and every inch of the joint property till lawful partition. Although one co-sharer cannot ordinarily be restrained from enjoying the joint property merely because he is in possession, he equally cannot, during pendency of partition proceedings, create irreversible equities by materially changing the nature of the joint property so as to prejudice the rights of the remaining co-sharers.

#7. In Ramdas v. Sitabai, (2009) 7 SCC 444, the Hon'ble Supreme Court held that a purchaser from a co-owner merely steps into the shoes of the transferor and acquires only an undivided interest until partition. Likewise, in Maharwal Khewaji Trust (Regd.) v. Baldev Dass, (2004) 8 SCC 488, it was held that where alteration of the nature of the property may result in irreversible consequences, the Court should ordinarily preserve the property during pendency of the litigation.

#8. The appellate Court has correctly appreciated that two competing equities existed. On one hand, the plaintiff had a legitimate grievance that further construction upon the joint property could complicate partition proceedings and create pleas of equity at the stage of the final decree. On the other hand, the petitioners asserted that construction had already reached an advanced stage and complete prohibition would result in hardship. Instead of accepting either extreme position, the appellate Court adopted a balanced course by permitting the existing construction to remain, while restraining CR-2652-2026 2026:PHHC: 090080 further construction, alteration or creation of third-party rights. Such an approach protects the subject matter of the litigation without causing unnecessary prejudice to either side.

#9. The order impugned is thus neither arbitrary nor contrary to settled principles governing grant of temporary injunction. Rather, substantially conforms to the principles that grant of temporary injunction depends upon a prima facie case, balance of convenience and irreparable injury, all of which are matters resting primarily within the discretion of the Court dealing with the interlocutory application.

#10. It is equally well settled that while examining an appeal against an interlocutory order, the appellate Court is competent to interfere where the discretion exercised by the Trial Court is shown to be arbitrary, capricious or based upon an incorrect appreciation of law. Conversely, once the appellate Court has exercised its own judicial discretion on sound legal principles, the supervisory jurisdiction under Article 227 is not intended to substitute yet another view merely because a different conclusion is also possible.

#11. In Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727, the Hon'ble Supreme Court held that appellate interference with discretionary interlocutory orders is limited and the higher Court should not substitute its own discretion unless the order under challenge suffers from arbitrariness or perversity. The same restraint applies with greater force while exercising jurisdiction under Article 227 of the Constitution.

#12. The supervisory jurisdiction of this Court is intended to keep subordinate Courts within the bounds of their authority and not to function as another appellate forum. Unless the impugned order suffers from patent perversity, manifest illegality or jurisdictional error, interference is wholly unwarranted. Reference may be made to Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 and Radhey Shyam v. Chhabi Nath, (2015) 5 SCC

#13. The impugned order reflects a proper balancing of competing equities. No vested right of the petitioners has been taken away. They have CR-2652-2026 2026:PHHC: 090080 merely been restrained from further changing the nature of the joint property pending adjudication of the partition suit, while the construction already existing has expressly been made subject to the final decree and has not been ordered to be demolished. Such protection is necessary to preserve the subject matter of the suit and to avoid multiplicity of proceedings.

#14. No jurisdictional error, perversity or material irregularity discernible in the impugned judgment warranting interference by this Court in exercise of its supervisory jurisdiction.

#16. Accordingly, the present revision petition is dismissed. Nothing observed herein shall be construed as an expression on the merits of the controversy, which shall be decided independently by the learned Trial Court on the basis of the evidence led by the parties.

#17. Pending miscellaneous application(s), if any, shall also stand disposed of.

03.07.2026 Vivek (DEEPAK GUPTA) JUDGE Whether Speaking/reasoned Whether reportable Yes No