IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 415 of 2005. Reserved on : 9.11.2010. Decided on: 18.11.2010. __________________________________________________________ Brij Lal. … Appellant. Versus Puran Chand. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. G.R. Palsra, Advocate. For the Respondent : Mr. Sanjeev Kuthiala, Advocate. Rajiv Sharma, J.: This regular second appeal is directed against the judgment and decree dated 1.7.2005 passed by the District Judge, Mandi in Civil Appeal No.54 of 2004. 2. Material facts necessary for adjudication of this regular second appeal are that the respondent/plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) had filed a suit for permanent prohibitory injunction, restraining the appellant/defendant (hereinafter referred to as “the defendant” for convenience sake) from raising any construction by the side of the road over the valuable portion of land comprised in Khewat No.127 min, Khatauni No.140, Khasra No.890, measuring 2-13-7 bighas, situate in Mohal Kehar, Illaqua Rajgarh Balh, Tehsil Sadar, district Mandi. According to the plaintiff, suit land was 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - jointly owned and possessed by the parties alongwith other co-sharers and partition proceedings were pending before the Revenue Officer. The defendant started stacking material on the spot for raising construction over the valuable portion of the suit land. Suit was contested by the defendant by filing written statement. On merits, it was admitted that the suit land was joint of the parties alongwith other co-sharers. However, it was specifically denied that the suit land was in possession of the plaintiff alongwith co-sharers. According to him, he was in exclusive possession of the suit land alongwith his brother Prem Sukh. He has alleged private partition amongst the co-sharers. He has admitted the pendency of partition proceedings. Replication was filed by the plaintiff by re-asserting the stand taken in the plaint. The trial Court framed the issues on 18.11.2002. Learned Trial Court dismissed the suit on 2.8.2004. Plaintiff preferred an appeal before the learned District Judge, Mandi. He allowed the appeal on 1.7.2005. Hence, this regular second appeal. 3. This regular second appeal was admitted on the following substantial questions of law on 12.8.2005:- 1. Whether a co-sharer, who is not in possession of any portion of joint property, is not entitled to seek an injunction against the other co-sharer simply on the ground that the other co-sharer is raising construction on a small portion of the joint land without proving injury and damage? 2. Whether the Ld. First Appellate Court has misread the oral and documentary evidence of the parties, which has materially prejudiced the case of the appellant? 4. Mr. G.R. Palsra, learned counsel for the appellant has supported the judgment of learned Civil Judge (Senior Division), dated - 3 - 2.8.2004. Mr. Sanjeev Kuthiala, learned counsel for the respondent has supported the judgment of learned District Judge, dated 1.7.2005. 5. I have heard the learned counsel for the parties and perused the record carefully. 6. Since both the substantial questions of law are interlinked and interconnected, they have been taken up together for determination to avoid repetition of discussion of evidence. 7. Plaintiff has appeared as PW-1. According to him, one side of the suit land is adjoining to the PWD road and the same has not been partitioned. According to him, partition proceedings were pending before the Revenue Officer. PW-2 is Shri Sher Singh. Shri Govind Ram is PW-3. He has deposed about the construction raised by the defendant. Defendant has appeared as DW-1. According to him, he was in exclusive possession of the suit land and the parties were maintaining their separate houses and were also cultivating the land separately. 8. The partition proceedings are pending before the competent authority. Though the defendant as DW-1 has made reference about some family partition, however, he has neither given any date nor month or year when the family partition took place. He has admitted that the suit land measuring 11-12 bighas was joint of the parties. In his written statement, he has claimed not only that he was in exclusive possession, but also exclusive title to suit land to the exclusion of plaintiff and other co-sharers. Since the land in question has not been partitioned, the defendant could not be permitted to raise any construction thereon without working out any arrangement or with consent of the co-owners. If he wanted to raise any construction, he - 4 - ought to have sought consent of the other co-owners since the land was joint. The learned District Judge has rightly relied upon Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram, AIR 1961, Punjab, 528 and the judgment rendered by this Court in Prithi Singh Vs. Bachitar Singh, 1969 DLT 583 while dismissing the appeal. 9. Accordingly, in view of the observations made hereinabove, there is no merit in this regular second appeal and the same is dismissed being devoid of any merit, so also the pending application(s), if any. There shall, however, be no order as to costs. (Rajiv Sharma), Judge. November 18, 2010. (sck).