IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMOs No. 61 & 62 of 2011 Reserved on: 26.5.2011 Date of decision: 2.6.2011 1. CMPMO No. 61 of 2011 Naveen Chand Sood Versus Suman Kaushal 2. CMPMO No. 62 of 2011 Naveen Chand Sood Versus Suman Kaushal Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioner(s): Mr. Ajay Kumar, Advocate. For the respondent(s): Mr. Bhupinder Gupta, Senior Advocate with Mr. Ajit Jaswal, Advocate. _____________________________________________________ Deepak Gupta, J 1. On 19.10.2007, the petitioner Naveen Chand Sood filed a suit against Shri Manmohan Shankar, his wife Smt. Suman Kaushal and Smt. Satya Devi wife of the petitioner, who was proforma defendant in the suit. The allegations in the suit were that the suit land measuring 0-44-89 hectares is jointly owned by all the parties to the suit. It was further alleged that defendant No.2 Smt. Suman Kaushal and Ms. Shivani Sood daughter of the plaintiff had 2 entered into a partnership deed on 16.11.2004 to open a business of service station styled as M/s S.K. Motors on a portion of the suit land. According to the plaintiff, defendant No.2 on behalf of S.K. Motors requested the plaintiff to raise a building and gave a letter in writing to the plaintiff in this behalf. The plaintiff raised a loan from the Punjab National Bank for construction of the building and all the defendants swore an affidavit stating that they have no objection to the plaintiff raising a loan for construction of the building. Thereafter, the plaintiff mortgaged his share of the land with the Punjab National Bank and raised a loan and thereafter constructed the building on a portion of the suit land, which building was rented out to M/s S.K. Motors. The case of the plaintiff is that he now wants to shift to village Kamlota, where the service station is functioning and there is no accommodation for him. Therefore, he wants to raise another storey on top of the existing building for his own residence. It was alleged that defendants No. 1 and 2 are objecting to the construction of the building and hence, the suit for injunction praying that defendants No.1 and 2 be restrained from interfering in the possession or in any manner obstructing in the construction of the building. 2. On 22.10.2007, Smt. Suman Kaushal, who was defendant in the suit, filed a suit against Shri Naveen Chand Sood, his wife Smt. Satya Devi and daughter Ms. Shivani Sood; and basically prayed that Naveen Chand Sood and his 3 family members be restrained from raising pillars over the building which was already in existence. The case set up by Smt. Suman Kaushal was that the land is joint and that on 16.11.2004 a lease deed was executed in favour of M/s S.K. Motors for a period of five years and that the building is in the possession of M/s S.K. Motors and the plaintiff has no right to raise any construction over the same. The stand of Smt. Suman Kaushal and her husband, who has since died, was that the building housing M/s S.K. Motors was constructed jointly by the plaintiff and late Shri Manmohan Shankar. It was alleged that Shri Manmohan Shankar had also raised a loan from the Kangra Co-operative Bank and at the time of taking loan the other three co-owners i.e. Naveen Chand Sood, his wife Satya Devi and Smt. Suman Kaushal had given a joint affidavit that they had no objection to Shri Manmohan Shankar raising a loan. Thus, according to the defendants, the building was not constructed by Shri Naveen Chand Sood alone, but jointly by Naveen Chand Sood and Manmohan Shankar. After construction, the building was leased out to M/s S.K. Motors. In the second suit filed by Manmohan Shankar and his wife, it was prayed that Naveen Chand Sood be restrained from raising any construction over the suit land. 3. From the facts, which have been pleaded and the documents which are on record, it is obvious that the building in question is rented out to M/s S.K. Motors. It is 4 obvious that now Naveen Chand Sood wants to raise another storey on this building, basically on the plea that the ground floor was constructed by him and is in his exclusive possession, though admittedly the land is jointly owned. 4. The learned trial Judge in the suit filed by Naveen Chand Sood rejected his prayer for grant of interim injunction and dismissed the application filed by him. In the suit filed by Smt. Suman Kaushal, Naveen Chand Sood and his family members were restrained from raising any construction over the already existing building. The appeals filed by Shri Naveen Chand Sood before the learned District Judge have been rejected. Hence, the present petitions. 5. I have heard Shri Ajay Kumar, learned counsel for the petitioner and Shri Bhupinder Gupta, learned senior counsel for the respondents. 6. Shri Ajay Kumar has urged that though, the land may be jointly owned by Naveen Chand Sood and the other three co-owners, yet it is Naveen Chand Sood who had constructed the building and he is in exclusive possession of the same through the tenant M/s S.K. Motors. He, therefore, prays that the other co-owners cannot interfere or stop him from raising construction over this building. In support of his submissions, he has relied upon three judgments being M/s DCM Shriram Consolidated Ltd. vs. Jai Singh, 2006(2) Civil Court Cases 106, Tara Singh vs. Maghar Singh, 2005(3) Civil Court Cases 59 and Kehar Singh & Ors. vs. 5 Joginder Kaur alias Jogindero & Ors., 2004(3) Civil Court Cases 174. In my view, none of these judgments is applicable to the facts of the present case. 7. In the present case, it is in dispute whether the building was constructed by Naveen Chand Sood only or by Naveen Chand Sood and Shri Manmohan Shankar jointly. No doubt, Naveen Chand Sood has alleged that the building was constructed by him, but the respondents have placed sufficient material on record to show that Shri Manmohan Shankar had also raised loan for construction of same building. This court cannot loose sight of the fact that the partners in M/s S.K. Motors are none else, but the daughter of Naveen Chand Sood and wife of Shri Manmohan Shankar. It is obvious that at that time their relations were cordial, but soured later on. Be that as it may, there are highly disputed contentious issues involved as to whether this building was constructed jointly or solely by Shri Naveen Chand Sood. Keeping in view the facts that the land is joint and also that there is prima facie material to show that Shri Manmohan Shankar had also raised a loan, it cannot be said at this stage with an amount of certainty that the plaintiff Naveen Chand Sood is in exclusive possession of the portion of the property which admittedly is on rent with M/s S.K. Motors. Therefore, I find no jurisdictional error in the orders of the learned courts below and it is not a fit case where this Court should 6 exercise supervisory jurisdiction vested in it under Article 227 of the Constitution of India to decide the matter. 8. In view of above discussion, I find no merit in these petitions. Accordingly, the same are rejected. Keeping in view the fact that the dispute involved in both the cases is identical, the learned trial court is directed to hear and decide both the cases together. It is for the learned trial court to see as to whether the cases should be consolidated for the purpose of recording evidence or not, but they must be heard together so as to avoid any conflicting decision. The suits were filed in the year 2007 and therefore, the learned trial court is requested to dispose of the same at the earliest and in any event not later than 31st March, 2012. Both the parties are directed to appear before the learned trial court on 28th June, 2011. June 2, 2011 (Deepak Gupta) (vt) Judge