IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.:69/2007 Decided on. 14.7.2008 Kamla Devi. …Appellant. Versus Wajir Chand. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellant : Mr. Ajay Chandel, Advocate. For the respondent : Mr. Ramakant Sharma, Advocate. Rajiv Sharma, J. (oral) A challenge has been laid to the judgment and decree passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No.10-G/XIII-2006 dated 1.11.2006. The brief facts necessary for the disposal of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit in the Court of learned Civil Judge (Junior Division) Court No.II, Dehra that the land bearing khata No.96 min, khatauni No. 124 min, khasra No. 1226 and 1232 measuring 0-04-79 hectares situate in Mohal Kohlari, Mouza Tihri, Tehsil Khundian as entered in the copy of Jamabandi for the year 1996-97 Ex.P-1 was 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 previously owned and possessed by one Sh. Piar Singh, who died and he was succeeded by Madan Lal, Mohinder Singh and Shakuntla Devi in equal shares along with other land. The plaintiff has purchased the complete share of Madan Lal and Mohinder Singh in the suit land alongwith other khasra No.116 and also 7/24 share of Smt. Shankutla Devi in Khasra No.1232 and the defendant has purchased only remaining share of Smt. Shankutla Devi in the suit land measuring 0-00-51 hectares which is approximately less than 3 marlas as per jamabandi. It was further averred that on the basis of the sale deed, the defendant was threatening to raise construction by digging foundation over the suit land. The respondent (hereinafter after referred to as ‘the defendant’ for convenience sake) resisted the suit by filing written statement. The plaintiff filed the replication to the written statement. The trial court framed the following issues: 1. Whether plaintiff is entitled for injunction as prayed for? OPP. 2. Whether suit is not maintainable in the present form? OPD 3. Whether plaintiff is estopped from filing the present suit by his acts and conduct? OPD 4. Relief. The trial court recorded the following findings on the aforementioned issues: Issue No.1 No. Issue No.2 No. Issue No.3 Yes. Issue No.4 Suit of the plaintiff is dismissed as per operative part of judgment. The trial court dismissed the suit on 8.9.2005. The plaintiff preferred an appeal against the judgment of the trial court before the 3 learned District Judge, Kangra at Dharamshala. The learned District Judge dismissed the appeal on 1.11.2006. This Regular Second Appeal has been preferred against the judgment dated 1.11.2006. The notice was issued in this appeal on 7.3.2007. The certified copy of the judgment of the trial court has now been placed on record by the appellant. Mr. Ajay Chandel, Advocate has strenuously argued that the judgment and decree passed by the learned first appellate court dated 1.11.2006 is not sustainable in the eyes of law. He has also contended that both the courts below have not correctly appreciated the report Ex.PW-2/A, which has resulted in grave miscarriage of justice. Mr. Ramakant Sharma, Advocate has supported the judgment dated 1.11.2006. I have heard the learned counsel for the parties and perused the pleadings of the parties carefully. PW-1 is the plaintiff. In her affidavit filed under order 18 rule 4 of the Code of Civil Procedure she has deposed that she is in possession of the suit land as co-owner and that part of the suit land touching the road head is very valuable which is around 6 meters and was lying vacant when she purchased it. According to her the construction was started by the defendant in the month of March, 2001 and as per share holding, the defendant is entitled to one meter on the road head whereas she was entitled to 5 meters. She has admitted in her cross-examination that the road in question was kucha road. She has admitted that she is not in possession on the suit land. PW-2 is V.S. Gill, who was appointed to inspect the suit land. He has furnished the report Ex.PW-2/A. He has admitted that no notice was served upon the defendant and he has only deposed that the father of the defendant was present on the spot. He has admitted that he has not taken any help from the Patwari. It has come in 4 his statement that the dispute was with respect to Khasra No. 1226 and not 1232 between the parties. He has noticed that the defendant has raised the pucca construction which was fresh and lintel was yet to be laid. According to him 3 sides were half constructed up to the level of 6 feet height. It was necessary for PW-2 to issue notice to the defendant of his intended visit to the spot. He was also required to take the assistance from the Patwari to determine the exact status of the spot. The learned trial court has rightly not relied upon the report Ex.PW-2/A on the basis of inherent defects in it. PW-3 Gandhi Ram has admitted in his cross- examination that the defendant had laid down the foundation in the month of July, 2001. PW-4 Sh. Sant Ram has also admitted in his cross- examination that foundation was laid by the defendant in the month of July, 2000. Thus the plea of the plaintiff that cause of action had arisen to him in the month of March, 2003 is belied by her own witnesses. DW-1 Wazir Chand has filed his affidavit Ex.DA. He has stated in the affidavit that he purchased the land measuring 0-00-51 hectares of suit land from Smt. Shankulta Devi on 24.4.2000 for a sum of Rs. 2,500/- and the area was demarcated by the Patwari. He has dug up the foundation in the month of July, 2000 and in January, 2001 started raising construction, which was not objected by the defendant. He has further deposed that the possession of the suit land was within his share. DW-2 is Sh. Chandu Lal. He has filed his affidavit under order 18 rule 4 of the Code of Civil procedure. He has supported the version of DW-1. It is thus evident that the defendant has constructed the shops covering 6 meters on road head over the suit land. He has started construction in the month of July, 2000. He has purchased the land from Smt. Shankutala on 24.4.2000 for a sum of Rs. 2,500/-. It was the admitted case of the parties as noticed by the first appellate court that the 5 shop in question stood already raised on the spot. Thus there was no question of granting relief of prohibitory injunction as the same had become infructuous. The construction raised by the defendant is in the month of January, 2001, which is prior to the filing of the suit. The Court cannot order the demolition of the shop raised on joint property. The remedy to plaintiff as a co-sharer is by way of partition of her share in the suit land as rightly observed by the appellate court. The plea raised by Mr. Ajay Chandel, that there is misreading and mis-construction of Ex.PW- 2/A is liable to be rejected in view of the observations made hereinabove, more particularly, when the Local Commissioner had not issued any notice to the defendant and that the help of the Patwari was not sought. The findings recorded by both the courts below are based on facts and there is no question of law much less any substantial question of law involved in this Regular Second Appeal. Consequently, there is no merit in the Regular Second Appeal and the same is dismissed. There shall be no order as to costs. July 14, 2008 (Rajiv Sharma ), J. *awasthi*