IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.119 of 1999. Reserved on:04.04.2008. Decided on: May 02, 2008. Vishwa Nath …Appellant. VERSUS Chhaju Ram & Anr. ….Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Appellant: Mr Ajay Sharma, Advocate. For the respondents: Mr Subhash Sharma, Advocate. Kuldip Singh, Judge The appellant was plaintiff in case No.64 of 1989 which was dismissed by learned Sub Judge Una on 2.9.1992. The plaintiff filed Civil Appeal No.104 of 1992 against judgment and decree dated 2.9.1992 and that too was dismissed by learned District Judge Una on 1.4.1999, hence, plaintiff is in second appeal. 2. The facts, in brief, are that appellant filed a suit for permanent prohibitory injunction against respondents restraining them from raising any kind of construction or changing the nature of the plot denoted by letters ABCDEF shown in red in the site plan filed with the Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… plaint, a decree of mandatory injunction directing the respondents to remove kitchen denoted by letters EFGD shown in red in site plan being part and parcel of land measuring 2 kanals 3 marlas comprised in Khewat No.205, Khatauni No.244, Khasra No.686 vide Jamabandi 1982-83 village Basdehra, Tehsil and District Una. In the alternative, decree for restoration to its original position of site denoted by letters ABCDEF has also been prayed. 3. The pleaded case of the appellant is that parties are owners of the land measuring 2 kanals 3 marlas along with the abadi standing there on with common courtyard. There is a common courtyard over the plot denoted by letters ABCG which is used by the parties commonly. The respondents have constructed a kitchen about 3 months ago over a portion denoted by letters EFGD which has caused obstruction in the use of the common courtyard. The respondents are threatening to construct a septic tank in the courtyard but neither they are entitled nor they have any right to construct septic tank in the courtyard. The suit was contested by respondents by filing written statement in which it has been submitted that site underneath the abadis of the appellant is owned and possessed by appellant and he has got 6 feet wide passage towards west along with his abadis. The rest of the site along with the structure towards west is owned and possessed by respondents. The parties have raised their abadis at their own expenses and for the last more than 18 years they are separate in mess and business for the last 20 years in accordance with family settlement. In the site plan, the site shown as common …3… courtyard is wrong. The parties along with Prem Nath were given the sites in the abadi deh. The fourth brother Prem Nath has been given a vacant site towards the east of the appellant’s abadis. The appellant has nothing in joint with the respondents. The appellant is in possession of the site more than his share. The appellant is estopped from filing the suit. The respondents prayed for dismissal of the suit. The appellant filed replication in which he contested the claim of the respondents. The learned Senior Sub Judge dismissed the suit of the appellant on 2.9.1992 and the learned District Judge in appeal has upheld the judgment, decree dated 2.9.1992. The appeal has been admitted on the following substantial questions of law:- i) Whether a co-sharer can be refused injunction against another co-sharer from raising construction despite holding that the property in question is joint? ii) Whether learned District Judge below erred in dismissing application under Order 1 Rule 10 filed by some co-sharers in view of the document Ext.P-2? 4. I have heard Mr.Ajay Sharma, learned counsel for the appellant and Mr.Subhash Sharma, learned counsel for the respondents and gone through the record. Mr.Ajay Sharma appearing on behalf of the appellant has submitted that it has been proved on record that the suit land is jointly owned by the parties and respondents have no right to usurp whole or any part of the suit land or change the nature of the suit land till it is partitioned. They are also under …4… obligation to restore suit land to its original position. The learned District Judge has erred in not allowing the application under Order 1 Rule 10 CPC. Mr.Subhash Sharma appearing on behalf of the respondents has submitted that the two courts below have concurrently returned findings against the appellant. There is no substantial question of law involved in the appeal which requires determination by this Court. The appellant has filed the suit in his own alleged rights and, therefore, learned District Judge has rightly dismissed the application under Order 1 Rule 10 CPC. Mr.Subhash Sharma has supported the impugned judgment, decree. SUBSTANTIAL QUESTION OF LAW NO.(ii): 5. Bal Krishan and three others had filed an application under Order 1 Rule 10 CPC in the lower appellate Court for impleading them as party on the ground that they have 1/4th share in the land in dispute. It has been alleged that major portion of the land has been covered under abadi and only some portion is lying vacant which falls to the share of the applicants. It has been submitted that in order to avoid multiplicity of litigation it is necessary that the applicants be impleaded as party in the appeal. This application was opposed by the respondents and ultimately dismissed by learned District Judge. The appellant has filed the suit on the basis of his case pleaded in the plaint. He has prayed no relief against the applicants. The applicants in the application have not stated whether they want to become appellants or respondents. The judgment between the appellant and respondents will adjudicate the dispute between them. The applicants …5… are not necessary parties in the dispute. The learned District Judge has rightly dismissed the application and no fault can be found with the decision of the learned District Judge. The applicants have accepted the order of dismissal of the application and they have not assailed that order. The substantial question of law No.(ii) is decided against the appellant. SUBSTANTIAL QUESTION OF LAW NO.(i): 6. The appellant in para-1 of the plaint has pleaded that parties are owners of the land measuring 2 kanals 3 marlas. He has not pleaded that the parties are owners in possession of land measuring 2 kanals 3 marlas. The appellant has appeared as PW-1 and in his statement he has stated that their abadi lands were never partitioned. The disputed land is 2 kanals 3 marlas, his abadi is on 3 marlas and that of the respondents on 6-7 marlas. PW-1 is not claiming jointness in the abadis of respondents nor he has stated that in his abadi the respondents have any share. In other words, the appellant is very clear that his abadi and abadis of respondents are separate. In the plaint the appellant has alleged that there is common courtyard denoted by letters ABCG and the respondents have raised kitchen on a portion of this courtyard and they are threatening to raise septic tank on another portion of this courtyard. The substance of the defence of the respondents is that because of family settlement they are in possession of specific portions including alleged courtyard. The site ABCG shown in site plan is part of 2 kanals 3 marlas as per the case of the appellant but he has nowhere pleaded that this site is in his possession. It …6… means the appellant also does not deny the fact that even though at one point of time the land was jointly owned by appellant with respondents but in some settlement the appellant and respondents were put in possession of particular portions and, therefore, the appellant has not pleaded that site shown by letters ABCG in the site plan is also possessed by him. Once the site ABCG is in possession of the respondents in a family settlement, as claimed by them, then they have right to use that portion. Assuming there was no family settlement between the parties and suit property is still joint but in that case also on the facts proved on record the appellant is not entitled to any injunction as prayed by him. The defence of respondents of specific portion is for possession. In Sant Ram Nagina Ram versus Daya Ram Nagina Ram, AIR 1961 Punjab 528, it has been held that a mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all and it has further been held where 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. The respondents are claiming possession of suit plot on the basis of family settlement. The appellant has not proved special damage. It is not the case of the appellant that he does not have any …7… other passage for ingress and egress to his abadi except the plot in question. 7. It has been noticed by the trial Court in the judgment dated 2.9.1992 that appellant is already in possession of excess land as per his share. The plea of alleged common courtyard of the appellant with the respondents establishes that even as per the case of appellant on the basis of some understanding between the parties the disputed portion was allegedly kept as common courtyard. This proves the assertion of the respondents that there was family settlement and in the family settlement the parties were put in possession of specific portions of the disputed land. The perusal of Ext.P-1 would show that there are numerous owners and in absence of previous settlement the other co-sharers would not have allowed the respondents to use the suit plot for their own purpose only. The suit has been filed by the appellant on the basis of his own alleged right which he has failed to establish on the suit land. The parties are real brothers. The two Courts below have rightly appreciated the material on record. The two Courts below on facts have held that appellant has failed to make out any case. No case for interference has been made out. The substantial question of law No.(i) is decided against the appellant. 8. No other point was urged. 9. The result of the above discussion, the appeal is dismissed. No order as to costs. May 02, 2008(soni) ( Kuldip Singh ), J.