IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 544 of 2000 Date of Decision 6th July ,2011 ________________________________________________________ Om Parkash ….Appellant. Versus Anirudh and others ….Respondents. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No __________________________________________________________ For the Appellant: Mr. Ramakant Sharma, Advocate with Mr. Malay Kaushal, Advocate. For the Respondents: Mr. Neeraj Gupta, Advocate. _________________________________________________________________ Dev Darshan Sud, J (oral) This is the defendants’ appeal against the judgment and decree of the learned Courts below decreeing the suit of the plaintiffs/respondents for permanent injunction prohibiting and restraining the appellant from effecting any construction or changing the nature of the land comprised in Khata No. 43, Khatauni No. 77, Khasra No. 374 measuring 0-04-58 HM situated in Tika Lutehar, mauja Anuhi, Tehsil Nurpur, District Kangra jointly owned and possessed by the plaintiffs and defendant till the suit land is partitioned by metes and bounds. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 2. On the pleadings of the parties, the learned trial Court settled eight issues. The first and most crucial issue was as to whether the suit land is jointly owned and possessed by the plaintiffs and defendant, the second was as to whether the plaintiffs are entitled to injunction and the third was as to whether the defendant is in exclusive possession of the Gair Mumkin Abadi situated over the suit land. On the first two issues the leanred trial Court held in favour of the plaintiffs that the land is jointly owned and possessed by them and therefore, the plaintiffs were entitled to injunction, as prayed for. The contention of the defendant-appellant that he was in exclusive possession of the Gair Mumkin Abadi was negatived. 3. A decree in terms of the prayer was granted prohibiting and restraining the defendant from raising any construction over the suit land. Any right to change the nature of land comprised Khata No. 43, Khatauni No. 77, Khasra No. 374 measuring 0-04-58, situated in Tika Lutehar, mauza Anuhi, Tehsil Nurpur is also prohibited till the suit land is partitioned by metes and bounds. 4. I must notice at this stage one of the grounds urged for adjudication before the learned trial Court was that suit of the plaintiff is barred under Section 60 of the Indian Easement Act. The learned trial Court relied upon the decision in Ram Sarup Gupta (dead) by LRs. Vs. Bishun Narain Inter College and others,AIR 1987 SC 1242. The defendant appealed. The learned District Judge on the material on record and on the submissions made rejected the appeal. 3 5. One of the grounds as urged before him by the appellant herein was the bar imposed under Section 60 of the Easement Act. The learned District Judge holds that Section 60 (b) of the Act as aforesaid provides that the license is irrevocable only when the work of permanent character has been executed by the licensee on the suit land. The Court then considered the pleadings as to whether the license was created in his favour as provided under Section 60(b) of the Act. On the evidence on record, the learned District Judge negates such contention. This is a finding of fact arrived at by the two Courts below. 6. This appeal was admitted by this Court on five questions of law. Before adverting to answer them, I must note that during the pendency of this appeal, Anirudh and Pushpa Devi have transferred/gifted their land to Arun Kumar the son of Om Parkash, the appellant herein, meaning thereby that the estate of Om Parkash becomes enlarger to the extent of the share of Anirudh and Pushpa Devi and the suit itself against them would not be maintainable. 7. On the question of law as urged, the first question deals with as to whether license in terms of Section 60 has been granted and whether it bars the suit. From the judgments of both the Courts below, I find that this finding has been based on facts and cannot be disturbed. The other four questions would not require any adjudication for the reason that a part of the property has already been gifted to the son of the appellant. So far as the apprehension of the appellant is concerned that decree is against him, strictly on the point of law, it is settled law that a 4 co-sharer cannot be declared an exclusive owner of a particular portion of the land till it is partitioned. A submission is made by the learned counsel appearing for the appellant that as constructed portion of the appellant’s property is situated on the land, the same cannot be disturbed. It would be but stating the obvious that in case of partition proceedings, this part of the land will be allotted to the appellant. Appeal stands disposed of. All interim orders stand vacated. No order as to costs. July 6th, 2011 (Dev Darshan Sud), ms Judge 5