IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 35 of 2011 Date of decision: 6.4.2011 Sardar Singh ….Petitioner. Versus Smt. Salam Pati and others ….Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. B.S.Chauhan, Advocate. For the respondents: Mr. G.D.Verma with Mr. B.C.Verma, Advocate. Deepak Gupta, J. (Oral) 1. This petition is directed against the order dated 19th November, 2010 passed by the learned Additional District Judge, Camp at Rohru in Case No.2-R/14 of 2010 whereby he allowed the appeal filed by the defendants- respondents herein and vacated the stay order granted in favour of the plaintiff by the learned trial Court. 2. The undisputed facts are that the parties are joint owners of the suit land. There was one ancestral house on the suit land and this house was demolished by the defendants. After demolishing the house the defendants started raising fresh construction. The plaintiff 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 also alleged that the defendants have covered some other vacant land in addition to the land under old house. According to the plaintiff this land and old house being joint the defendants have no right either to demolish the house or to raise fresh construction thereupon. 3. The defence taken by the defendants was that in fact a family partition had taken place and this house was built by Bangu Ram, who was the father of late Shri Dalip Singh, husband of defendant No.1 and father of defendants No. 2 to 4. According to them this house was constructed about 100 years back and was exclusively used by the defendants and their family members for the last hundred years. It has also been contended that the plaintiff has constructed a house in a portion of Khasra No.56 depicted as Khasra No. 56/1 and his sister has also constructed another house on a portion of Khasra No.56 depicted as Khasra No.56/2. The defendants allege that these houses were constructed by them about 10 years back. The learned trial Court held that since in the revenue record the land and house was shown to be joint the plaintiff was entitled to grant of interim injunction. The learned lower Appellate Court held that even if it is presumed that the land is joint the fact remains that the joint owners were in possession of separate portions of the suit land and had constructed their houses on separate portions and even if there was no formal 3 partition the defendants could not be restrained from reconstructing the old house. Against this order the plaintiff has filed the present petition. 4. I have heard Shri B.S.Chauhan, learned counsel for the petitioner and Shri G.D.Verma learned senior counsel for the respondents. 5. At the outset it may be noted that it has not been refuted that the plaintiff and his sister have constructed separate houses on this joint land and are owners in possession of the same. It is also not disputed that the ancestral house which was demolished was being exclusively used by Dalip Singh and thereafter by the defendants. Even if it be accepted that the suit land was joint then also the exclusive user itself gives a right to the defendants to repair and reconstruct their old house. 6. From the material on record, it is also apparent that the construction had already reached the lentil level and at this stage to restrain the defendants from completing the construction would cause irreparable harm and damage to them which cannot be compensated in terms of costs in case the suit is finally dismissed. On the other hand in case the defendants are allowed to construct and the suit is decreed and it is held that the land and old house was joint the petitioner would be entitled to claim a share in the newly constructed house which would not cause any loss to them. It is clarified that 4 any construction raised shall be subject to the result of the suit and the defendants shall not claim any right or equity on the basis that they have spent time and money on the construction of the house. With these observations the petition is disposed of. No order as to costs. 6th April, 2011 (Deepak Gupta) ™ Judge