IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 467 of 2010. Reserved on: 16.12.2010. Decided on 04.01.2011. Bhag Chand and another. …Appellants. -Versus- Dola Ram and Others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellants. : Mr. Nimish Gupta, Advocate. For respondents No. 2 to 4. : Mr. L.S. Mehta, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 10.08.2010, passed by the learned Additional District Judge, Mandi, Camp at Karsog, H.P. in Civil Appeal No. 78 of 2008. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake) had instituted a suit for permanent prohibitory and mandatory injunction. According to the plaintiffs, the land in dispute is denoted by Khasra No. 674, 759/675, 761/675, measuring 0-6- 18 bigha, situated in Muhal Khanora. The suit land is recorded in the ownership and possession of the parties alongwith other co-sharers. The respondent-defendant No. 1(hereinafter referred to as “the defendant” for convenience sake) had constructed 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - Hotel over a portion of suit land and remaining land is lying vacant. Defendants have started raising construction over the entire suit land exceeding their shares. The land in question is yet to be partitioned in accordance with law. 3. The suit was contested by the defendants. According to the defendants, a family partition took place interse the parties in 1974. The parties are in separate possession qua the suit land. The defendant Dola Ram had raised construction over Khasra No. 759/675 about two years’ back with the consent of the plaintiffs. Plaintiff Bhag Chand had sold 0-1-3 bigha of land to one Shri Devi Dutt. He had also constructed two shops abutting to the road side about nine years’ back. However, the defendant did not object about the raising of construction by the plaintiff Bhag Chand. Plaintiff Chint Ram has also sold 0-2-0 bigha of land to Nand Lal. The trial Court framed the issues on 28.04.2008. The suit was dismissed by the trial Court on 23.08.2008. Plaintiffs preferred an appeal before the learned Additional District Judge, Mandi, Camp at Karsog. He dismissed the same on 10.08.2010. 4. Mr. Nimish Gupta, learned counsel for the appellants has strenuously argued that the judgments and decrees passed by both the Courts below are contrary to the principles of law. According to him, the finding recorded by both the Courts that the family partition has taken place between the parties is contrary to the evidence brought on record by the parties. - 3 - 5. Mr. L.S. Mehta, learned counsel for respondents No. 2 to 4 has supported the judgments and decrees passed by both the Courts below. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. Plaintiff-Bhag Chand has appeared as PW-1. He has admitted in his cross-examination that the parties are possessing the suit land separately as per their own arrangement. He has also admitted that the land was sold by him to one Shri Devi Dutt. He has also testified that he has constructed a house by the side of the road. He also admitted that Devi Dutt has also constructed a pucca house over the suit land. He has also admitted that plaintiff Chint Ram has sold the portion of the suit land to one Shri Nand Lal and he has also constructed three storeyed house over the same. He has also admitted plaintiff Chint Ram has also constructed a pucca house and shop. He further admitted that defendants did not object when the plaintiffs constructed their houses over the suit land. He also admitted in his cross-examination that family partition took place between the parties and he did not object as and when the construction was raised by the plaintiffs. 8. Plaintiff-Chint Ram has also appeared as PW-2. In his cross-examination, he has admitted that the parties were possessing the suit land separately since, 1974. He has also admitted that he is having separate possession over the suit land near the shop of Nand Lal and that middle portion of this land is in the possession of plaintiff-Bhag Chand and that lower - 4 - portion of the suit land was in the possession of defendant No. 1. 9. Defendant Dola Ram has appeared as DW-1. According to him, the suit land is owned and possessed by the parties separately and that construction has been raised by them. It is evident from the evidence produced on record by the parties that family partition has taken place and the parties are in possession of separate parcels of land. The construction raised by the plaintiffs was not objected to by the defendants. Plaintiffs have also sold land to one Shri Devi Dutt and Shri Nand Lal, respectively. These persons have also raised construction over the land sold to them by the plaintiffs. In view of the overwhelming evidence placed on record by the parties, the plea of the plaintiffs that the land is owned and possessed by them with the defendants jointly, cannot be accepted. Moreover, there is no substantial question of law involved in this petition. The Courts below have correctly read the oral as well as documentary evidence. 10. Accordingly, in view of the observations made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. (Rajiv Sharma) Judge January 04, 2010. (bhupender) - 5 - - 6 -