IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 127 of 2011. Date of decision: 17.5.2011. Deepak Kumar …Petitioner. Versus Shyam Lal & Anr. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 For the petitioner: Mr. Navlesh Verma, Advocate. For the respondents: Mr. Ashok Tyagi, Advocate Deepak Gupta, J. (Oral) 1. This case depicts a shocking state of affair where both the brothers who have entered into a compromise are trying to back out from the same and are trying to mislead the Court time and again. 2. The present petitioner filed a Civil Suit No. 32/1 of 2009 claiming that he alongwith his brother Shyam Lal and mother Smt. Darshna Devi are the owners of the suit property and that the respondent-brother (Shyam Lal) had collected material on the suit land/spot and wants to raise construction on the same and also wants to grab the commercial portion of the property. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. : 2 : 3. The stand of the respondent is that the property was earlier jointly co-owned but an agreement dated 12.3.2009 was entered into between the parties and in terms of this agreement the suit property fell to the share of the respondents. It is further submitted by the respondents that the construction is carried out on the third floor that is the roof of the 2nd floor and not on the ground floor and the second floor over which construction is being carried out is already in the possession of Shyam Lal. 4. Alongwith the suit, an application for interim relief was filed in which it was prayed by the plaintiff that the respondents be restrained from raising any construction. The learned Trial Court passed an order in favour of the plaintiff and thereafter the defendants filed an appeal and the learned Appellate Court after considering the entire facts came to the conclusion that the defendants are raising a third storey over the second storey which is already in their possession. He also came to the conclusion that the plaintiff is already in possession of land in excess of his share and, therefore, cannot claim any equity against the defendants. This finding was given on the basis of a site plan attached alongwith the written statement, but according to the plaintiff no such site plan was supplied to him. A party is supposed to inspect the : 3 : records. In a civil suit documents which are filed with the pleadings are never handed over to the other party. Any party when it argues a matter is expected to inspect the record and see what are the documents filed with the plaint/written statement. Be that as it may, the plaintiff cannot claim ignorance of the site plan. However, even if the site plan is ignored, the finding of the learned Lower Appellate Court that the plaintiff is in possession of land more than his share cannot be said to be a jurisdictional error. 5. The learned Lower Appellate Court has also come to the conclusion that irreparable loss and injury shall be caused in case stay order is granted and the defendants are not permitted to use the materials stacked by them. With the passage of time the cost of construction is bound to increase. 6. Alongwith the reply filed in this Court, the defendant has made reference to a suit filed by him in respect of some other property which admittedly was joint property. In that suit, the present plaintiff is the defendant and he has filed written statement in which his stand is that the parties have entered into a compromise/agreement and on the basis of the agreement dated 12.3.2009, the entire joint property has been mutually partitioned amongst them. No doubt, this document is not on the : 4 : record of the Trial Court, but it has not been denied before me that this written statement has been filed by the present plaintiff in the other suit. It is thus obvious that the present plaintiff in the other suit is denying the compromise/agreement dated 12.3.2009. The petitioner, therefore, is taking shifting stands. The position of the respondent Shyam Lal is not better. His stand is also evasive and is totally inconsistent in both the suits. Whereas, in the suit out of which the present petition arises Shyam Lal claims that the parties have partitioned the land while filing the second suit, he did not make any reference to the said document. No party can be permitted to take the Court for a ride. I am constrained to observe that both the brothers to settle their scores are making false statements in the Court. It is obvious that some settlement was arrived at between the parties and it should be the effort of the Court to ensure that the parties are bound by the said settlement, unless the same is shown to be forged or arrived at by undue influence. 7. Therefore, the present petition is rejected. It is, however, made clear that the petitioner shall be at liberty to apply to the learned Trial Court to hear and decide both the cases together. If such an application is made, the learned Trial Court shall ensure that both the suits are heard together. No costs. (Deepak Gupta) Judge May 17, 2011. (Krn Guleria)