IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 286 of 2002 with CMP No. 992 of 2005. Judgement reserved on: 26.5.2008 Date of decision: 2.6.2008 Roshan Lal & ors. ….. Appellants. Vs. Kuldip Singh & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Dushyant Dadwal, Advocate. For the Respondents : Mr. K.D. Sood, Advocate. Kuldip Singh, Judge. The appellants- defendants are in appeal against the judgement, decree dated 4.5.2002, passed by learned Additional District Judge, Mandi in Civil Appeal No. 20 of 1996 confirming the judgement and decree dated 31.1.1996 of learned Sub Judge Ist Class, Sundernagar in Civil Suit No. 205/89. 2. The brief facts of the case are that respondents- plaintiffs filed a suit for permanent prohibitory and mandatory injunction against the appellants that respondents- appellants are co- owners of land comprised in khewat- Khatauni No. 44/101 to 106, measuring 12015-0 square meters, situated in Mohal Pungh, Tehsil Whether the reporters of the local papers may be allowed to see the Judgment? …2… Sundernagar, District Mandi (hereinafter to be referred as the suit land). The respondents have applied for partition of the suit land and such proceedings are pending. The suit land is situated in municipal area of Sundernagar and some part of it abuts national highway 21. The respondents alleged that appellants had started collecting building material on 14.12.1989 in order to construct house-cum- shops on most valuable part of the suit land, which is situated by the side of national highway. In these circumstances, the suit was filed. The plaint was amended to the effect that during the pendency of the suit the appellants had raised construction of shops on khasra No. 1610 without the consent of the respondents, therefore, the respondents have prayed for mandatory injunction also for demolition of structure-cum-shops which were constructed by appellants on the suit land during the pendency of the suit. 3. The suit was contested by appellants No. 1, 2, 3 and 6 by filing a written statement. Preliminary objections of maintainability of the suit, cause of action, jurisdiction and estoppel were taken. On merits, it was submitted that suit land belongs to respondents and appellants but simultaneously a plea has been raised that revenue record showing the parties as joint owners is wrong. It has been submitted that suit land was partitioned by the ancestors of respondents and appellants. The respondents about five years back had constructed a new building on the land which was allotted to them by the ancestors and at that time the appellants never objected. The suit has been filed in order to harass the appellants. It has been alleged that appellants had raised construction on the suit land when …3… there was no stay order of the court. It has been pleaded that khasra No. 1610 is in exclusive possession of the appellants. The respondents filed replication to the written statement of appellants and reiterated their case. The learned trial court on 31.1.1996 decreed the suit and the appellants were restrained from raising any further construction on the suit land till the suit land is partitioned by competent authority. The learned Sub Judge also passed a decree of mandatory injunction for demolition of structure raised during the pendency of the suit on khasra No. 1610. The judgement, decree dated 31.1.1996 was assailed by way of appeal by the appellants which was dismissed by the learned Additional District Judge on 4.5.2002. In this way the appellants are in second appeal, which has been admitted on the following substantial question of law:- Whether the decree for perpetual prohibitory injunction and mandatory injunction could be passed when partition proceedings were complete and the land had been allotted to the share of the appellants- defendants and whether even without such proceedings, such decree was maintainable when any construction raised would be subject to the partition proceedings without any claim for equity. 4. I have heard Mr. Dushyant Dadwal, learned counsel for the appellants, Mr. K.D. Sood, learned counsel for the respondents and gone through the record. On behalf of the appellants, it has been submitted that two courts below have erred in decreeing the suit of the respondents on the basis of claim put forth by the respondents. It has been submitted that according to the respondents the suit land is joint, therefore, the appellants have every right to use the suit land …4… and respondents are not entitled to permanent prohibitory and mandatory injunction in respect of suit land in the facts and circumstances of the case. The learned counsel for the respondents has submitted that no substantial question of law is involved in the appeal. The two courts below have concurrently held that suit land is jointly owned by the parties. The appellants themselves have taken the stand that construction was raised on khasra No. 1610 when there was no stay from the court but they have not denied that construction was raised during the pendency of the suit. In these circumstances, decree of permanent prohibitory injunction as well as mandatory injunction passed by the two courts below is fully justified keeping in view the facts proved on record and the conduct of the appellants. 5. Mr. Dushyant Dadwal, learned counsel for the appellants has not denied the fact that even at the time of hearing of this appeal, the suit land has not been partitioned. The appellants took the stand that construction was raised on khasra No. 1610 when there was no stay order from the court. In other words, the appellants have taken the stand that though the construction on khasra No. 1610 was raised during the pendency of the suit, but such construction was raised in absence of any injunction order staying the construction. Mr. Dadwal has submitted that since the suit land is jointly owned by the parties, therefore, respondents are not entitled to prohibitory and mandatory injunction decree. The contention raised by Mr. Dadwal has no force. In the written statement filed by the appellants they have taken the plea that suit land had already been partitioned since the …5… time of their ancestors, they have also put forth the case that they are exclusive owners of the portion which is in their possession including khasra No. 1610 out of the suit land to the exclusion of respondents. Once the appellants take the plea of exclusive title then they cannot be heard to say that the parties are joint owners of the suit land, and, therefore, the respondents are not entitled to decree of permanent prohibitory and mandatory injunction. Mr. Dadwal has relied Sri Ram (deceased by LRs.) and another vs. Chauthi (deceased by LRs) and others AIR 1989 Allahabad 53, Nandi Housing Private Limited vs. Smt. Indrani Chandrasekhar AIR 1992 Karnataka 189, and Roop Chand vs. Indradevi and others AIR 1997 M.P 200 in support of his submissions that respondents are not entitled to prohibitory and mandatory injunction. In Sri Ram’s case (supra), on facts it was held that partition had already taken place and in view of partition the suit property had come to the plaintiff. On those facts, the suit of the plaintiff was decreed. In the present case the suit land has not been partitioned, and, therefore, the case cited by the learned counsel for the appellants is not applicable. Nandi’s case (supra) relied by the learned counsel is a case of temporary injunction under Order 39, Rules 1 & 2 CPC, therefore, in the facts and circumstances of this case, it is not applicable in the present case. In Roop Chand’s case (supra), the trial court held that there was a family settlement, hence the suit for partition was uncalled for and was not maintainable, but the trial court granted injunction in respect of interference in the shares of the parties. The High Court held that there was no partition between the co-sharers. The injunction …6… granted by the trial court is also uncalled for in view of the fact that no injunction could be granted in favour of one of the co-sharers against the others unless there was a finding that the shares of one of the co- sharers was either partitioned or made separate by family arrangement. In that case plaintiff filed the suit on the ground that his possession was being interfered by the defendants. On those facts, the High Court did not approve the decree of injunction granted by the trial court rather a decree for partition was passed. In the present case the facts are entirely different. The respondents have filed the suit that they are co-sharers alongwith the appellants on the suit land and appellants are usurping the best portion of the suit land for their own use. The appellants have pleaded exclusive title in themselves of the portion of suit land which is in their possession and they have even raised construction on some part of it, but the appellants have failed to prove their exclusive title on any portion of suit land. 6. The learned counsel for the respondents has relied Sant Ram Nagina Ram vs. Daya Ram Nagina Ram AIR 1961 Punjab 528, wherein it has been held as under:- “If, in spite of protests by one co-owner, another co- owner raises a building on a portion of joint land, not exceeding his own share, therein, the aggrieved co- owner cannot obtain a decree for demolition of that building without proving special damage or substantial injury to him unless the other co-owner who has raised the building has done so by asserting an exclusive title in himself and by denying that of the other co-owners.” …7… 7. In the present case, the appellants have denied the title of respondents by asserting their exclusive title in a portion of suit land more particularly on khasra No. 1610, therefore, Sant Ram’s case (supra) is squarely applicable in the facts and circumstances of the present case. The two courts below have rightly appreciated material on record and have recorded a concurrent finding of fact. The appellants have failed to make out a case for interference. The substantial question of law is decided against the appellants and in favour of the respondents. 8. No other point was urged. 9. As a result of the above discussion, the appeal fails and is accordingly dismissed. CMP No. 992 of 2005. 10. On 11.9.2002 in CMP No. 552 of 2002 in the above appeal, the following order was passed:- “Rejoinder is stated to have been filed with the Registry on 10th September, 2002. Office to place the same on record. In the facts and circumstances of the case, operation of impugned judgement and decree shall remain stayed during the pendency of the appeal. It is further directed that no further construction whatsoever shall be raised by the parties over the disputed property pending appeal. The application stands disposed of.” 11. The respondents have filed an application, under Order 39, Rule 2-A read with Section 151 of the Code of Civil Procedure, for punishing the appellants for having willfully disobeyed the order dated 11.9.2002 passed in CMP No. 552 of 2002. In the application, a …8… prayer for demolition of super-structure has also been made. It has been alleged that despite the order dated 11.9.2002 the appellants started construction of pillars of second storey on 16.10.2005. The respondents had sent a registered notice dated 24.10.2005 to Roshan Lal to stop construction and remove the pillars illegally raised. The respondents have thus prayed that appellants have willfully disobeyed the order dated 11.9.2002 of this Court and, therefore, proceedings may be initiated against the appellants for disobeying the order dated 11.9.2002 of this Court and appellants may be punished in accordance with law. 12. The appellants have filed the reply and denied that they have disobeyed the order dated 11.9.2002 of this Court. They have denied that any construction was raised by them on the suit land, as alleged. On the pleadings of the parties, the following issues were framed:- 1. Whether the appellants have disobeyed the order, dated 11.9.2002, passed in RSA No. 286/2002, as alleged? OPR (respondents in main appeal). 2. Final order. 13. RAW-1 Pardeep Thakur photographer has stated that he went to the spot in the company of the party that had approached his employer for taking photographs. He took photographs Ex. RAW-1/A-1 to Ex. RAW-1/A-3. The photograph Ex. RAW-1/B is the developed version of the three negatives. The cash memo of charges of photographs is Ex. RAW-1/C. In cross examination, he has stated that nobody carried out the demarcation …9… on the spot. He does not know who is the owner of the site on which the building was being constructed nor does he know the owners of the adjoining sites. 14. RAW-2 Aman Deep Singh has stated that after passing the stay order by this Court the appellants have erected nine pillars on khasra No. 1610. He had gone to Solan those days but when he returned on 16.10.2005, he noticed eight pillars had already been erected and the ninth one was being erected. He protested to the appellants that when there was a stay order they should not have raised any construction. He engaged photographer and got the pillars photographed. The photograph Ex. RAW-1/B is one of those photographs. He made the payment vide cash memo Ex. RAW-1/C. He sent notice, copy Ex. RAW-2/A through registered post vide postal receipt Ex. RAW-2/B. He placed on record copy of stay order Ex. RAW-2/C. In cross examination, he has stated that he has not obtained demarcation of the site after erection of alleged pillars. He has denied that such pillars were raised on khasra Nos. 1593 and 1594. He has admitted that in notice Ex. RAW-2/A date of erection of pillars has been mentioned as 15th October. He has admitted that date of construction mentioned in the notice has been over-written. 15. RW 1 Roshan Lal has stated that he has filed the appeal in this court, order of status quo was passed by this court on 11.9.2002 on their application. He has not raised any construction on the suit land. The disputed khasra number is 1610. No fresh construction has been raised on second storey after passing of the order. He has placed on record negative Ex. RW 1/A and photograph …10… Ex. RW 1/B. In cross examination, he has stated that photograph Ex. RAW-1/B shows the correct position of the suit property. He has denied that these pillars were constructed by him despite the order of status-quo. He has denied the suggestion that nine pillars shown in the photograph Ex. RAW-1/B are on khasra No. 1610. 16. RW 2 Kesar Singh has stated that he is an agriculturist. He does not know the khasra number of the disputed property, no construction was raised by the appellants on this property after 11.9.2002. He has denied that being a neighbour he has wrongly deposed. This is the entire evidence led by the parties. 17. This court on 11.9.2002 had directed that no further construction whatsoever shall be raised by the parties over the disputed property pending appeal. The respondents have alleged that some construction was raised by the appellants on the suit land after 11.9.2002 and they have disobeyed the order dated 11.9.2002. The respondents by leading cogent and specific evidence have not proved what was the position at site on 11.9.2002 and what specific construction was raised by the appellants after 11.9.2002. The disputed construction has not been identified. On behalf of the appellants it has been projected that disputed pillars stand on khasra Nos. 1593 and 1594, whereas according to respondents these pillars are on khasra No. 1610 as shown in photograph Ex. RAW-1/B. The disputed construction has not been identified on the spot by way of demarcation in order to show that in fact the disputed pillars were raised by the appellants after 11.9.2002 on any part of suit land. The respondents have failed to prove issue No. 1 that appellants have …11… willfully disobeyed the order dated 11.9.2002 of this court by raising construction on the suit land. Hence, the application is dismissed. June 2, 2008. ( Kuldip Singh ) (Hem) Judge.