IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 22 of 1999. Reserved on:4.6.2009. Decided on: 19.6.2009. __________________________________________________ Shri Bala Ram. … Appellant. Versus Shri Simroo. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Ms. Ruma Kaushik, Advocate. For the Respondent : Ms. Aruna Chauhan, Advocate vice Ms. Devyani Sharma, Adv. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 8.6.1998 passed by the learned District Judge, Kinnaur at Rampur in Civil Appeal No. 5/1998. Brief facts necessary for adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff for convenience sake) had filed a suit for issuance of perpetual injunction restraining the respondent/defendant (hereinafter referred to as the defendant for convenience sake) from raising construction over land measuring 0-01-04 hectares, comprised in Khasra No. 648 situate in Chak Jhulee Kot area of 15/20, Tehsil Rampur Bushahr and also for relief of mandatory injunction for dismantling the construction raised on the suit land by the defendant. It is owned by the parties to the suit land and two others but the possession is with the parties to this suit only. 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 There was an old house standing on the suit land. It was gutted in fire in 1994. The defendant started raising construction of a new house over the suit land. The defendant had extended construction over an area more than his share up to the height of seven feet. The defendant contested the suit. He clarified that since the parties are in separate possession of the suit land, entries in the column of possession of the revenue record were wrong. He started the construction of a new house where the old house existed. The learned Sub Judge dismissed the suit. The plaintiff filed an appeal before the learned District Judge, Kinnaur at Rampur Bushahr. He dismissed the same on 8.6.1998. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Kinnaur on 8.6.1998. This regular second appeal was admitted on the following substantial questions of law: 1. Whether oral evidence can be relied upon in preference to documentary evidence Ext. PW- 1/A and Ext.PW-1/B, wherein, the disputed property has been shown in joint possession of the parties? 2. Whether the co-owners can raise construction without partition of the suit land and over and above his share in the suit land? Ms. Ruma Kaushik has vehemently argued that the judgments and decrees passed by both the learned Courts below are not sustainable in the eyes of law. She then argued that both the learned Courts below have misconstrued Ext. PW-1/A and Ext. PW-1/B. She then contended that her client has established by 3 leading tangible evidence that the construction raised by the defendant was over the land of her client. Ms. Aruna Chauhan appearing vice Ms. Devyani Sharma has supported the judgments and decrees passed by both the learned Courts below. I have heard the parties and have gone through the pleadings carefully. Since substantial questions of law are inter-linked and inter- connected, the same have been taken up together to avoid repetition of discussion of evidence. The case set up by the plaintiff is that the property is joint and as such, the defendant had no right to raise construction beyond his share. However, the plaintiff has led evidence that there has been a partition and the construction raised by the defendant was on his share. This is a contradictory stand adopted by the plaintiff. The Courts below had permitted the suit to proceed to find out whether the defendant had encroached upon the land of the plaintiff or not? The plaintiff has deposed that the defendant was raising construction of a house on the site belonging to him as per the revenue record. He then deposed that the partition took place in the year 1983 between the parties and suit land fell to his share on which a double storeyed house was standing. There is double storeyed house adjoining to the house of the plaintiff which fell to the share of the defendant. The house was gutted in fire which broke out in the month of March, 1994. The plaintiff has not given the particulars/ dimension of the area over which the construction was stated to have been extended by the defendant by adducing 4 the site plan. He could get the relief only if he could prove that the defendant had encroached upon his land. He has failed to do so. The suit could not be decreed merely on the basis of copy of Misal Haqiyat Bandobast Jadid Ext. PW-1/A and Aks Sajra Kistwar Ext. PW-1/B in the absence of particulars/dimensions of the area in question. He was required to adduce site plan, as discussed hereinabove, giving dimensions of the area over which the defendant had extended his construction. The case of the defendant was that he has raised the construction on a portion falling in his share. The learned First Appellate Court has rightly concluded that the evidence led by the plaintiff with regard to factum of partition in fact has supported the case of the defendant. The plaintiff has given up his case of joint ownership and possession of the suit land as co-owner by leading evidence that there had been a partition of the suit land. The learned Courts below have correctly appreciated documentary evidence Ext. PW- 1/A and Ext. PW-1/B. The plaintiff has failed to prove by leading tangible evidence that the defendant has raised the construction on the land of the plaintiff. He has neither given the description of the land in the pleadings nor in his evidence. The plea raised by the plaintiff was mutually contradictory. Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. June 19, 2009. (cr)