IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA 325 of 1999. Decided on July 13, 2010. Jai Krishan (deceased) through his LRs Lalit Gupta and others …Appellants/defendants. Versus Daulat Ram …Respondent/Plaintiff. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant Mr. Bhupinder Gupta, Sr. Advocate, with Ms. Charu Gupta, Advocate. For the respondent Mr. G.D.Verma, Sr. Advocate, with Mr. Romesh Verma, Advocate. Surjit Singh, Judge (Oral). This regular second appeal by the appellants-defendants is directed against the judgment and decree, dated 28.4.1999, of learned Additional District Judge, whereby dismissing appellants- defendants appeal, trial Court’s judgment and decree, dated 28.8.1986, decreeing the plaintiff-respondent’s suit for permanent prohibitory injunction, as also mandatory injunction, have been affirmed. Whether reporters of the local papers may be allowed to see the judgment? - 2 - 2. Appeal was admitted on the following substantial questions of law: 1. Whether the lower appellate Court has wrongly rejected the application filed by the defendant- appellants to lead additional evidence particularly to prove the entries in the bahi which document was placed on record along with the written statement? Further application was also moved in the Trial Court permitting the defendants to prove such documents and also to permit the defendants to appear as witnesses on account of hasty closure of their evidence? Are not findings of the courts below vitiated for not granting due and adequate opportunity to the defendants to lead proper evidence, is not lower Appellate Court acted beyond jurisdiction to reject the application for additional evidence on untenable grounds? 2. Whether the findings rendered by the lower appellate court on Issue No. 5A are illegal and unsustainable particularly without giving the specific findings of comparative hardships to the parties and possibility of the adequately compensating the plaintiff. Are not principle of co-ownership and partition wrongly construed and misapplied amounting miscarriage of justice? 3. Respondent-plaintiff filed a suit for issuance of permanent prohibitory injunction, restraining the appellants-defendants from changing the nature of the suit land, which was alleged to be joint. Appellants- defendants took the plea of private partition, and - 3 - stated that in the partition, which had taken place long back and a reference to which was there in one of the Bahis, a portion of the land had fallen to their share and was in their exclusive possession and on that portion, they had raised a shed. 4. An application for temporary injunction, pending disposal of the suit, was also moved by the respondent-plaintiff, seeking issuance of injunction, restraining the appellants-defendants from raising any construction on any portion of the suit land. Ex parte ad interim injunction was granted soon after the institution of the suit. Suit was instituted in the year 1980. Record shows that respondent-plaintiff filed a contempt petition under Order 39 Rule 2-A CPC in the trial Court, alleging that despite issuance of ex parte ad interim injunction, appellants-defendants had constructed a shed on portion of the suit land. That application was dismissed by the trial Court, but appeal against the order of the trial Court was accepted by the District Judge and appellants-defendants were held guilty of disobeying ex parte ad interim order. 5. Trial Court decreed the suit, holding that suit property was joint. Decree of permanent prohibitory injunction, restraining the appellants- defendants from changing the nature of the suit - 4 - property, till its partition, was passed. Decree of mandatory injunction, directing removal of shed, raised by the appellants-defendants, was also granted. Appeal was carried to the Court of District Judge, against the judgment and decree of the trial Court by the appellants-defendants. That has been dismissed by the impugned judgment and decree. 6. I have heard the counsel for the parties and gone through the record. 7. It is submitted on behalf of the appellants- defendants that an application had been moved in the first appellate Court, seeking leave to lead additional evidence, in the form of entry in the Bahi, to prove plea of private partition, which was rejected. Learned counsel concedes that no such application was made in the trial and that impression, which is gatherable from substantial question of law No. 1, that such an application was moved in the trial Court, is not correct. 8. From the record of the trial Court, it is made out that issues were framed in the case on 24.5.1986. Plaintiff closed his evidence in June 1986 and thereafter, matter was listed for defendants’ evidence. Then, additional issues Nos. 5(a) and 5(b) were framed on 17.7.1986. Plaintiff closed his evidence, with regard to additional issues on - 5 - 28.7.1986. Thereafter, matter was listed for defendants’ evidence on 12.8.1986, on which date two witnesses were examined and appellants-defendants were given another opportunity to adduce remaining evidence on 26.8.1986. On that day, no witness of the defendants was present and the evidence was closed. Thus, only two opportunities were granted to the appellants-defendants to lead evidence. 9. However, additional evidence, which the appellants-defendants wanted to lead, as per application made in the first appellate Court, was in the nature of entry in the Bahi. First appellate Court has come to the finding that evidence, even if allowed to be adduced, will not advance the case of the appellants- defendants, inasmuch as the alleged private partition had not been given effect to in the revenue papers. View taken by the first appellate Court, is in consonance with the provisions of H.P. Land Revenue Act, 1963, because Section 135 of the Act says that when any private partition is effected among the parties, application is required to be made to the revenue officer, for affirming the partition and the revenue officer, then follows the procedure prescribed under Sections 131, 132, 133 and 134 or any of these sections, as the circumstances may require, and passes - 6 - the final order. In the present case, no such application was moved by any party, or at least, private partition was not given effect to in the revenue record. 10. As regards the second substantial question of law, submission made by the counsel for the appellants-defendants is that since shed has already been raised by the appellants-defendants and the same is in existence for the last about 30 years, order by way of mandatory injunction for its demolition, will operate very harsh against the appellants-defendants. Argument has been noticed only to be rejected. As already noticed, shed was raised by the appellants- defendants, defying the order of ad interim injunction, issued by the trial Court. They have been held guilty of disobedience of the order of the Court and a party, which disobeys Court’s order, is not entitled to any equitable relief in its favour. 11. In view of the above discussion, both the substantial questions of law are answered against the appellants – defendants and the appeal is dismissed. July 13, 2010 (PC). (Surjit Singh), J.