IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 290 of 2002 Date of decision: 28.9. 2011. Bhim Dutt …Appellant. Versus Rameshwar Dutt and another ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Balwant Singh, Advocate, vice Mr. K.D.Sood, Advocate. For the respondents : None. Kuldip Singh , Judge ( Oral ) This appeal has been directed against judgment, decree dated 27.3.2002 passed by learned Additional District Judge, Sirmaur District at Nahan in Civil Appeal No. 75-N/13 of 2001 affirming judgment, decree dated 18.8.2001 passed by learned Sub Judge 1st Class, Rajgarh, Camp at Sarahan in Civil Suit No. 68/1 of 2000. 2. The facts, in brief, are that the respondents had filed a suit for permanent prohibitory injunction with the averments that they had purchased the land measuring 10.3 bighas out of the suit land comprised in Khata Khatauni No. 4 min/4 min, Khata Khatauni No. 7/8, 7/9 and 7/10 total plots 36, measuring 25.1 bighas situated at Village Bharoot, Tehsil Pachhad from Sant Ram. The respondents and appellant are owners in possession of the suit land. The land has not 1 Whether reporters of Local Papers may be allowed to see the Judgment ?yes 2 been partitioned, but the appellant is trying to grab the best portion of the suit land and had started construction on 14.7.2000 on the suit land. The respondents had requested the appellant not to raise construction on the suit land but the appellant has not stopped the construction. On the contrary, the appellant has threatened that he would alienate a portion of the land. 3. The appellant contested the suit by filing written statement and took preliminary objections of maintainability, respondents are not in possession of the suit land, respondents have not approached the Court with clean hands, suit is liable to be stayed under Section 10 CPC, the suit has been filed by the respondents in opposition to the suit filed by the appellant. On merits, it has been stated that Sant Ram, predecessor-in-interest of the respondents was not competent to sell specific portion or khasra numbers in favour of the respondents nor he was competent to transfer possession of specific portion of suit land. The portion of the land over which the construction by the appellant has been alleged, has not been specified. The appellant has denied that he started construction on the suit land on 14.7.2000. A plea has been taken that appellant is in possession of the entire suit land. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the defendant is threatening to change the nature of the suit land, as alleged? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the suit is liable to be stayed under Section 10 CPC? OPD 3 4. Whether the plaintiffs have suppressed the material facts? OPD 5. Whether the plaintiffs have no cause of action? OPD 6. Relief. The issue No. 1 was answered in affirmative and issues No. 2 to 5 in negative. The learned Sub Judge decreed the suit on 18.8.2001 and restrained the appellant from raising construction or changing nature of the suit land in khata khatauni No. 4min/4min, 7/8, 7/9 and 7/10 total plots 36, measuring 25.1 bighas till the land is joint and not legally partitioned by metes and bounds. The learned Additional District Judge in appeal on 27.3.2002 affirmed the judgment, decree dated 18.8.2001, hence second appeal which has been admitted on the following substantial questions of law:- 1. Whether in view of the admitted position that defendant was owner of ½ share in the land measuring 25-1 bigha and in exclusive possession thereof was entitled to raise construction of cow-shed and storage tank, which was for the user purposes, the discretionary relief of injunction could be granted in favour of the plaintiffs-respondents stopping the same construction? 2. Whether the findings of the courts below are perverse and based on mis-reading and mis-construction of oral and documentary evidence and pleadings of the parties are also based on inadmissible evidence and it could be assumed that plaintiff has become owner of ½ share of Sant Ram by virtue of sale deed, mark ‘X’? 3. Whether the decree for injunction could be passed against a person who was admittedly co-sharer in possession of the entire property even in respect of a small portion of the property where he wanted to raise cow-shed and water 4 storage tank for agricultural purposes well within his share? 5. I have heard the learned counsel for the appellant and have also gone through the record. It has been submitted by the learned counsel for the appellant that appellant is in exclusive possession of the entire suit land. Sant Ram predecessor-in-interest of the respondents could not have sold specific khasra numbers and deliver possession to respondents out of joint holding. It has been submitted that the portion of the land over which the appellant allegedly threatened to raise construction has not been specified. He has submitted that in the sale deed in favour of the respondents specific khasra numbers have not been mentioned. 6. The substantial questions of law No.1 to 3 are inter- connected and, therefore, all of them are taken up collectively for determination. The appellant has not denied that Sant Ram had sold the land in favour of the respondents. It has however been submitted that in the sale deed specific khasra numbers have not been mentioned nor Sant Ram could deliver possession of specific khasra numbers to respondents. It is significant to note that the appellant succeeded Smt. Ram Devi. Ram Devi and Sant Ram have been shown co-sharers in jamabandi for the years 1996-97 Ex.PW-1/A and Ex.PW-1/B. 7. In Ex.PW-1/A and Ex.PW-1/B, Ram Devi and Sant Ram and others have been shown owners in possession of the suit land. The suit land has come to respondents from Sant Ram, therefore, it can be safely concluded that appellant and respondents are co-sharers 5 on the suit land. The objection of appellant that neither specific khasra numbers were sold to respondents nor they could have been put in possession of specific khasra numbers by Sant Ram, has no force once the respondents through their predecessor Sant Ram as per jamabandi Ex.PW-1/A and Ex.PW-1/B are recorded owners in possession of the suit land along with Ram Devi predecessor-in- interest of the appellant. 8. The next question is whether on the joint land a co-owner without the consent of other co-sharers can raise construction. It has been contended by the learned counsel for the appellant that the appellant is in possession of the entire suit land. But this contention is meritless in view of Ex.PW-1/A and Ex.PW-1/B jamabandi where Sant Ram predecessor-in-interest of the respondents has also been shown in possession of the suit land. On the joint land one co-sharer cannot raise construction without the consent of other co-sharers till the land is partitioned as held in Sant Ram Nagina Ram vs. Daya Ram Nagina Ram and others AIR 1961 (Punjab) 528. This legal position has been rightly appreciated by the two Courts below. There is no evidence on record to show that appellant is in exclusive possession of the suit land. The sale in favour of respondents by Sant Ram has not been denied what has been denied is that Sant Ram could not have sold the specific khasra numbers and deliver the possession of those khasra numbers to the respondents. In these circumstances, it cannot be said that the two Courts below have relied inadmissible evidence in granting relief to the respondents. 6 9. The ownership and possession of Sant Ram predecessor- in-interest of the respondents is duly recorded in jamabandi Ex. PW-1/A and Ex.PW-1/B. It has not been pointed out how the two Courts below have erred in decreeing the suit of the respondents or how the findings recorded by the two courts below are based upon mis-construction and mis-interpretation of evidence. The decree has been passed restraining the appellant from raising construction or changing the nature of the suit land till it is legally partitioned. No fault can be found with the decree passed by the two Courts below. The substantial questions of law No. 1 to 3 are decided against the appellant. There is no merit in the appeal. 10. In view of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. September 28, 2011. ( Kuldip Singh ), (GR) Judge.