IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 165 of 1998 Judgment reserved on:- 8.9.2008 Date of Decision:- ___10.11.2008 __________________________________________________________ Sant Ram & others. ….Appellants. Versus State & another ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Appellants: Shri K.D. Sood, Advocate. For the Respondent No.1: Ms. Ruma Kaushik, Additional Advocate General For the respondent No.2: S/Shri Bimal Gupta and Karan Singh Kanwar, Advocates. __________________________________________________________ Dev Darshan Sud, J. This appeal has been filed by the plaintiff against the judgment and decree of the learned Additional District Judge, Sirmour reversing the judgment and decree passed by the learned Sub Judge Ist Class, Court No. II, Poanta Sahib in a suit instituted by the appellant praying for a decree of demolition of Panchayat Ghar built up on a portion of the suit land claimed by the plaintiff to be his exclusive property. The learned trial Court on the plea of plaintiff that he was the exclusive owner in possession of the suit land and that the State had constructed a Panchayat Ghar on a part of the land without his consent, decreed the suit and 1 Whether reports of Local Papers may be allowed to see the judgment? 2 directed that the possession of Khasra No. 948 be handed over to the plaintiff, appellant herein, after demolition of the constructed portion. In appeal, the learned Additional District Judge found as a fact that respondent No.2 Bhawan Singh was a co-owner with the appellant. Defendant No.2 claims title on the basis of a sale having been executed in his favour (which was the subject matter of RSA No. 97 of 1997 which already stands decided and relates to the same parcel of land). The learned Appellate Court also finds as a fact that after the lapse of eight years, the appellant sought a decree of mandatory injunction praying for removal of the construction from the suit land, which cannot be granted and invokes the principle of acquiescence. The Court also holds that the principle of law as laid down in Sant Ram, Nagina Ram Versus Daya Ram Nagain Ram, AIR 1961 Punjab 528 was a clear bar to the relief as claimed by the plaintiff-appellant herein. This appeal has been admitted on questions No. 2, 3 and 4 which are as under:- 2. Whether in the facts and circumstances of the case, the learned Additional District Judge was right in setting aside the judgment of trial Court and holding that the defendant Bhawan Singh became co-sharer in property in dispute with appellant in 1990 ? 3. Whether the learned District Judge has erred in law in misconstruing the pleadings and misreading the oral and documentary evidence on record which has vitiated the findings ? 4. Whether the principle enunciated in the judgment AIR 1961 Punjab and Haryana 528 were applicable in the case ? Taking up questions No.2 and 3 together for discussion, the decision on these questions would be determined by the judgment passed in RSA 3 No. 97 of 1997 titled Sant Ram Versus Bhawan Singh and others on 29th July, 2008. In that appeal, the contention raised by the appellant herein that respondent No.2 Bhawan Singh was not a co-sharer was rejected as his status as such has been confirmed on the basis of a sale deed duly proved on record and adjudicated by the trial Court and affirmed in appeal by the District Judge which has also been upheld by this Court. On going through the pleadings of parties, I do not find that there is any misconstruction of the pleadings or of the evidence on record. The learned District Judge, on a detailed consideration of the evidence on record, holds that the plaintiff has admitted that he, Budhia and Nano were co-sharers in the land comprised in Khasra No. 948 and other land. Defendant No.2 had claimed to be a co-sharer in the suit land. These facts need not detain this Court as the same have already been determined in RSA 97 of 1997. The learned District Judge thereafter proceeds to consider the revenue record as also the oral evidence on record to hold that defendant No.2 Bhawan Singh is a co-owner in the suit land. Having determined this, the learned Court proceeds to hold and rightly so that construction of the Panchayat Ghar was made in the year 1983 and the plaintiff-appellant herein having allowed such construction without any demur could not pray for a decree of mandatory injunction calling upon the State to demolish the constructed portion. He holds that even the tatima filed by the Patwari does not form a part of decree and the learned trial Court was not clear regarding the decree which was to be granted in favour of the appellant herein. Having held that defendant No.2 is a co-owner, the learned Court correctly holds that he does not support the case of plaintiff and in this event the plaintiff-appellant is not entitled to any relief. I do not find any perversity of appreciation of evidence to hold that the learned Court below has misread or misconstrued the pleadings or, as urged, wrongly set aside the judgment of the learned trial Court. The appellate Court is a final Court of fact and the judgment 4 shows that Court has considered each and every point urged. Both these questions are, therefore, decided against the appellant. On question No.3 all that need be said is that the proposition of law as enunciated by the High Court of Punjab and as applied by the appellate Court have been correctly appreciated. This question is, therefore, decided against the appellant. There is no merit in this appeal which stands dismissed. There shall be no order as to costs. November 10, 2008 (Dev Darshan Sud) (ms) Judge