IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 220/2000 Reserved on:7.5.2009 Decided on:5.6. 2009 Shakuntla Devi and others. …Appellants. Versus Brij Lal and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate For the Respondents : Mr. R.K. Sharma, Advocate for respondents No. 1 & 4. None for respondents No. 2 and 3. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 3.3.2000 passed by the learned District Judge, Hamirpur in civil appeal No.58/1992. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit for permanent prohibitory injunction for restraining the respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) from dismantling the built up 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 portion or changing the nature of land as comprised in Khasra No. 1538 measuring 8 marlas situated in Tikka Jahu Khurd, Tappa Mewa, Tehsil Bhoranj, District Hamirpur as per jamabandi for the year 1979-80. It is further averred that they were joint owners in possession along with defendants No.2 and 3 of land as comprised in Khasra No. 1538. Prior to consolidation, the suit land was part of old khasra No. 1490. The suit land as per old khasra number was irrigated land which was in possession of Sh. Ganga Ram, the predecessor-in-interest of the plaintiff in his capacity as Gair Moursi. He had constructed double storeyed building over the suit land measuring 5 marlas. Defendant No.1 was a tenant of the plaintiffs in respect of one shop which was located in the ground floor. Defendants No.2 and 3 had no concern in the disputed shop. Defendant No.1 on 1.1.1986 started dismantling the upper storey of the shop. He was prevented from doing so. At that stage it transpired that defendants No.2 and 3 have sold the disputed shop through their general attorney defendant No.4. According to the plaintiffs, defendants No,2 and 3 had no right to transfer the shop in dispute. The suit was contested by the defendants. They have filed separate written statements. The defendants had denied that the plaintiffs were owners in possession of the suit land. It is further denied that the disputed shop was constructed by Sh. Ganga Ram. Defendant No.1 claimed that he has purchased the disputed shop alongwith suit land vide registered sale deed dated 3.12.1985 for a consideration of Rs. 35,000/-. The trial court decreed the suit on 31.3.1992. The defendants preferred an appeal before the learned District Judge, Hamirpur. The learned District Judge Hamirpur allowed the appeal on 3.3.2000. This Regular Second Appeal was admitted on the following substantial questions of law: 3 1. “Whether it is admitted fact that the building which was double storeyed had two rooms and verandah in each floor and out of which only one room was in possession of the defendants who disputed the right of the plaintiffs and threatened interference with the plaintiff’s rights on the same, the learned District Judge was justified in denying the relief of injunction to the plaintiff and reversing the judgment of the trial court? 2. Whether the oral and documentary evidence particularly Ex.P-11, Rapat Rojnama dated 10.10.1939, Jamabandi P- 10 for the year 1938-39, Jamabandi Ex.P-9 for the years 1942-43, Jamabandi P-7 for the years 1950-51 and P-6 Jamabandi for the years 1954-55 have been misread and mis-construed which has vitiated the findings?” Mr. Rajnish K. Lal, Advocate has supported the judgment and decree passed by the learned trial court dated 31.3.1992. He then contended that the learned first appellate court has erred in law in denying the relief of injunction to the plaintiffs. He then contended that the learned District Judge has misread the oral as well as documentary evidence. He has placed strong reliance upon the copies of jamabandis placed on record by the plaintiffs. Mr. R.K. Sharma, Advocate has supported the judgment and decree passed by the learned first appellate court. I have heard the learned counsel for the parties and perused the record carefully. Since both the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. Defendant No.1 Sh. Brij Lal has purchased the shop on the basis of sale deed dated 3.12.1985 for consideration of Rs. 35,000/-. The copy of 4 the sale deed is Ex.DW-1/A. PW-1 Rajinder Kumar has testified that the disputed shop was owned by his father Sh. Ganga Ram about 45-46 years back. It was given on rent to H.R.T.C. Brij Lal defendant No.1 was inducted as a tenant. However, he was not paying any rent. PW-2 Sunder Ram has supported the version of PW-1. He has deposed that the shop was constructed by Sh. Ganga Ram. PW-3 and PW-4 have also deposed that the disputed shop was constructed by Sh. Ganga Ram. PW-5 Shiv Kumar has testified that the shop remained on rent with his department and the rent was paid to Ganga Ram. He has produced on record the map of the shop. DW-1 Kishan Chand has deposed about the sale deed Ex.DW-1/A. DW-2 Parkash Chand was the marginal witness of sale deed Ex.DW-1/A. DW-3 Brij Lal has testified that there are shops on the disputed land. He has purchased double storey from Gareesh Chand and Lashkari Narain vide Ex.DW-1/A. He has paid a sum of Rs. 35,000/-. The possession of the shop was handed over to him by Gareesh Chand and Lashkari Narain. He has denied that the entire building remained with the Himachal Pradesh Road Transport after 1969. DW-4 Smt. Rama Kanta has deposed that the disputed shop is situated on Khasra No. 1538. There are two rooms in the ground floor, two rooms in the first floor of the said shop and in front of it, there is a verandah. DW-5 has deposed that the disputed shop was constructed about 50 years back and it was got constructed by Sh. Ganga Ram. DW-5 Raju Ram and DW-6 Sarwan Ram have deposed in favour of the defendants. Sh. Ganga Ram was recorded in possession of one shop comprised in old khasra No. 1490 to the extent of 5 marlas as per Khasra Girdawari Ex.P-2. As per jamabandi for the year 1938-39 Ex.P-10, one Smt. Rohansu widow of Nagina was recorded owner of old khasra No. 5 1490, but it was recorded in possession of one Lachhman as Gair Moursi tenant. As per entry in the copy of jamabandi for the year 1942-43, the name of Sh. Ganga Ram is recorded in possession column. In the jamabandi for the year 1946-47 Ex.P-8, the whole of old Khasra No. 1490 was shown to be owned and possessed by Sh. Ganga Ram as Gair Moursi and in the column of rent he was recorded as in possession because of sale. The same were reflected upto 1950-51. In the copy of jamabandi for the year 1954-55 (Ex.P-6), Sh. Ganga Ram was recorded in possession as co-sharer. In the copy of jamabandi for the year 1963-64 (Ex.P-3), the suit land as comprised in old khasra No. 1490 with its present Khasra No. 1538 was recorded in the joint ownership and possession of Sh. Ganga Ram, defendants No.2 and 3 and one Sh. Narenu. The same entries were reflected in the copy of jamabandi for the year 1979-80 (Ex.P-1). What emerges from the combined reading of the copies of jamabandis proved on record is that the plaintiffs and defendants No.2 and 4 are co-owners. Defendants No.2 and 4 have sold their share of the property to defendant No.1 vide Ex.DW-1/A dated 3.12.1985 for a consideration of Rs. 35,000/-. Immediately after the sale was complete and defendant No.1 was put in possession of the same, he became co- owner along with the plaintiffs. Rather it is admitted case of the plaintiffs themselves that defendants No.2 to 4 were co-owners in the disputed property. The learned District Judge had come to a right conclusion that where the share of co-sharer is purchased and the transferee has been put in possession then the injunction may not be a proper remedy. The remedy to the plaintiffs was to file a civil suit for partition and not to seek injunction. The first appellate court has rightly appreciated Ex.P-1, P-3 6 and P-6 while coming to a conclusion that the plaintiffs were recorded co- owners with the defendants No.2 to 4. The sale deed Ex.PW-1/A dated 3.12.1985 has been proved on record by the defendants. Accordingly, in view of the aforesaid discussion, there is no question of law much less substantial question of law involved in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. 5.6. 2009 (Rajiv Sharma ), J. *awasthi*