IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R No. 106 of 2009 Date of decision : 16.3.2010 ____________________________________________________ Smt. Sarla Devi & Another …Petitioners. Versus Jeet Ram and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the petitioners : Mr. B.B. Vaid, Advocate. For the Respondents : Mr. G.D. Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. Kuldip Singh, Judge(Oral) This revision petition has been directed against the judgment dated 22.7.2009 passed by learned Addl. District Judge, Fast Track Court, Shimla in Civil Misc. Appeal No.56-S/14, affirming the order dated 18.10.2008 passed by learned Civil Judge (Sr. Division) (2), Shimla in Case No.92/6 of 2008. 2. The petitioners were defendants in the suit which was filed by respondents on the grounds that suit land is owned by many co- sharers. It has not been partitioned but despite that petitioners are threatening to raise construction on the best portion of the joint land. ______________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ? 2 Alongwith the plaint application under Order 39 rules 1 & 2 CPC was also filed. 3. The suit was contested by the petitioners. They had filed written statement in which they have not denied the fact that the suit land is owned by many co-sharers. It has been contended on behalf of the petitioners that the suit land is owned by more than thirty persons who have already constructed their houses on the land which was in their respective possession. The respondents have filed the suit when petitioners after purchasing the suit land intended to raise construction thereon. It has been submitted on behalf of the petitioners that in the peculiar facts and circumstances of the case the principle that a co-sharer is not allowed to raise construction on the joint land till the land is partitioned is not applicable in the present case. The learned Civil Judge on 18.10.2008 allowed the application and restrained the petitioners from raising construction on the suit land till the final disposal of the main suit. The learned Addl. District Judge on 22.7.2009 has affirmed the order dated 18.10.2008 4. Heard the learned counsel for the parties. The learned counsel for the petitioners has submitted that petitioners are ready to give undertaking to the effect that in case the suit of the respondents is decreed, the petitioners will vacate the land without claiming any compensation. The learned counsel for the respondents has submitted that revision itself is not maintainable. It has been additionally submitted that the two Courts below have already recorded a finding of fact in favour of the respondents and under Section 115 CPC; this Court may not like to disturb the findings recorded by the two 3 Courts below. The application under Order 39 rules 1 & 2 CPC cannot be decided on the basis of undertaking of the petitioners which they have offered through their counsel. 5. The petitioners in their revision petition have stated that more than thirty owners have raised the construction on the land on the spot. In other words more than thirty persons have already raised construction on the land which was in their possession. It has not been denied by learned counsel for the petitioners that the petitioners are the subsequent purchasers of land from co-sharer Baldev. As per sale deed no specific portion of the joint land was sold and possession delivered to the petitioners, rather only a share in the land was sold. This fact has otherwise been noticed by learned lower Appellate Court in para-17 of the judgment. 6. The learned counsel for the respondents has relied Sashi Adhalakha & another vs. Madhuri Saini Latest HLJ 2000 (HP) 789 on the point that no interference is called for in the revision petition, more particularly when two Courts below have concurrently granted interim injunction to respondents. In view of the fact that the petitioners are the subsequent purchaser from the co-sharer and they have only purchased a share in the joint land and no specific portion, it cannot be said that the petitioners through their predecessor are in possession of any specific portion of land in dispute. The learned counsel for the petitioners has submitted that a specific portion of the land was handed over to the petitioners on the basis of sale deed by the previous owner but there is no satisfactory material on record to support this contention. It is the case of the respondents that 4 petitioners intend to raise construction on a specific portion of the land which is valuable piece of land and petitioners till the land is partitioned cannot be permitted to raise construction exclusively on such portion of land. The petitioners cannot be permitted to raise construction on suit on the basis of undertaking as submitted by their counsel. The two Courts below have considered the matter on the basis of material on record and concurrently rejected the contentions of petitioners and allowed the application of respondents for interim relief, therefore, no fault can be found with such findings. There is no merit in the revision petition which is accordingly dismissed. 7. In view of disposal of main petition the CMP No.632 of 2009 is rendered infructuous. March 16, 2010 (Kuldip Singh) (sks) Judge.