IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 201 of 2008. Decided on: 19.4.2010. __________________________________________________ Shri Deep Ram. … Appellant. Versus Shri Vijay and another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Adarsh K. Vashista, Advocate. For Respondent No.1 : Nemo. For Respondent No. 2 : Mr. Anuj Gupta, Advocate. ___________________________________________________________ V.K. Sharma, Judge (Oral). The litigation in this regular second appeal is between the father and his two sons, the appellant/plaintiff, Shri Deep Ram on the one side and the respondents/defendants, S/Shri Vijay and Vinod on the other. The subject-matter of dispute between them is a three storeyed residential house built on the site bearing survey No. 181/53/44/2/1, situate at village Totu Pargana Kaimli, Tehsil & District Shimla. It is not in dispute that the plaintiff is owner of the house-cum- site which is his self-acquired property. The suit was filed by him against his sons for grant of the following reliefs: a) A decree for permanent prohibitory injunction restraining the defendants from interfering in the peaceful possession of the building comprised in Kh. No. 181/53/44/2/1 situate in village Totu, Pargana Kaimli, Tehsil and District Shimla (HP) and also restraining the defendants from ousting the plaintiff from the same 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 may please be passed in favour of the plaintiff and against the defendants. b) Any other relief as deemed in the facts and circumstances of the case may also be passed in favour of the plaintiff and against the defendants with costs. The suit was decreed by the learned trial Court in the following terms: i) The defendants No. 1 & 2 are hereby restrained from interfering in the possession of the plaintiff over the part of the building in his possession. ii) The defendants No. 1 & 2 are further restrained from forcibly dispossessing the plaintiff from the three storeyed house built over Kh. No. 181/53/44/2/1, situate at village Totu Pargana Kaimli, Tehsil and District Shimla, H.P. The matter was carried in appeal by the defendants to the Court of the learned District Judge, Shimla. The appeal was partly allowed in the following terms: “In view of the above findings, the appeal is partly accepted and the judgment and decree, dated July 24, 2002, passed by the learned Sub Judge (2), Shimla, is set-aside in-so-far as the defendants have been restrained from interfering with the possession of the plaintiff in respect of a portion of the building which was in occupation of the plaintiff. However, the findings and decree passed by the learned Sub Judge in-so-far as the defendants have been restrained from dispossessing the plaintiff from the disputed building is affirmed. Therefore, the appeal is partly accepted and the decree passed by the trial Court is modified to the extent that the suit of the plaintiff for seeking the relief of injunction against the defendants for restraining them from causing the interference with the possession of the plaintiff stands dismissed. However, the 3 decree with regard to the prohibitory injunction against the defendants for restraining them from dispossessing the plaintiff from the disputed building is affirmed. The parties are left to bear their own costs. Necessary decree sheet be prepared accordingly. The record of the trial Court be sent back along with copy of this judgment and the record of this Court be consigned to records.” The plaintiff being dissatisfied is before this Court by way of present regular second appeal. The appeal has been admitted on the following substantial question of law: “Whether the findings given by the learned Court below are perverse there being contrary to evidence on record and more particularly Ex. PW1/A, Ex. PW1/B and Ex. PW1/C?” I have heard the learned counsel for the parties and gone through the records. It goes without saying that the litigation between the father and the sons is unfortunate. However, to my mind, in view of the given facts and circumstances, the plaintiff, who is owner of the disputed property, would be deemed to be in its constructive possession even if the defendants, who are his sons, are residing in a portion of the house which can at best be with his consent or on the strength of their status as his sons. It is in evidence that the plaintiff being owner of the house is in possession thereof, both actual and constructive. In a portion of the house, he himself is living and can thus, said to be in actual possession of that part 4 of the house though not specifically identified with the help of the materials on record. At the same time, it is also made out that the defendants are also residing in the same very house, though in different portions, which also remain not properly identified. In a way the plaintiff would also be deemed to be in constructive possession of these portions of the house. In view of the above factual matrix and particularly taking into consideration the sale deed Ex. PW1/A vide which the site under the house was purchased by the plaintiff, electricity bill Ex. PW1/B which is in his name and notice Ex. PW1/C whereby the plaintiff had notified for information of the general public that he had severed all relations with his son defendant No.1 Vijay and that he would not be responsible for any financial or other liability incurred by him in any manner whatsoever, the appeal is disposed of in the following terms: 1. The defendants are restrained from causing interference in any manner whatsoever with the rights of ownership of the plaintiff in respect of the house in suit including the site on which it has been built. 2. They are further restrained from causing interference in any manner whatsoever with the possession of the plaintiff over that portion of the house in suit including the site which is in his actual possession 5 on the spot and from dispossessing him therefrom. 3. The defendants shall keep on residing in the respective portions of the house in suit which are in their possession at present till they are evicted from the same in accordance with law. The appeal stands disposed of in the above terms. Consequently, the impugned judgment dated 24.7.2004 shall stand modified accordingly. Keeping in view the inter se relationship between the parties, there shall be no order as to costs. (V.K. Sharma) Judge. April 19, 2010. (cr)