IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.604 of 2000 Judgment reserved on: 24.4.2010 Date of decision : 31.5.2010 ____________________________________________________ Daya Ram Appellant Versus Manohar Singh …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the appellant : Mr. Romesh Verma, Advocate. For the Respondent : None. Kuldip Singh, J The defendant has come in second appeal against judgment, decree of affirmation passed by learned District Judge, Shimla on 1.8.2000 in Civil Appeal No.68-S/13 of 1999, affirming judgment, decree dated 18.6.1999 passed by learned Sub Judge Ist Class, Court No.1, Shimla in Case No.259/1 of 95/91. 2. The facts in brief are that Manohar Singh respondent had filed a suit for permanent prohibitory injunction against appellant restraining him from raising construction or changing the nature of the land measuring 4 biswas comprised in khasra No.264/51, situate at Mauza Tutu, Pargana Kaimili , Tehsil and Distt Shimla. It was alleged that one late Smt. Ganeshu was the owner of ½ share in land, _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 which share was transferred by her to one Barfu Ram through registered sale deed and mutation to this effect was attested on 6.10.1990. Barfu Ram started raising construction over a portion of land and also started alienating various portions of the land to different persons without getting the land partitioned. Ganeshu had already transferred 14 biswas of land out of her share and as such she could not legally transfer 4-4 bighas of land in the joint holding. The respondent being a co-sharer requested Barfu Ram not to do illegal acts but to no avail. The respondent filed suit against Barfu Ram which was pending before learned Senior Sub Judge, Shimla. Barfu Ram had transferred 1/42 share measuring 4 biswas out of the undivided khasra No.264/51 measuring 8-7 bighas and mutation was attested on 26.3.1991 in favour of the appellant. The appellant had threatened to raise construction without getting the land partitioned and therefore, the suit was filed. 3. The appellant had contested the suit and took preliminary objections such as maintainability, estoppel. It has been alleged that respondent is out of possession of the suit land; therefore, he is not entitled to injunction. On merits, it was admitted that Ganeshu was the owner of ½ share in the land comprised in khasra No.264/51. She had transferred her entire share to Barfu Ram, who had sold land measuring 4 bighas to appellant for consideration of Rs.10,000/- through a registered sale deed and possession was also delivered to him. The appellant had already constructed foundation of his house by spending more than Rs.50,000/-, therefore, suit is not maintainable. The appellant had developed 3 biswas of land to raise construction 3 before filing of the suit. The respondent has alternative remedy for partitioning the suit land. The respondent had filed replication and refuted the stand of appellant. 4. On the pleadings of the parties the following issues were framed:- 1. Whether the suit in the present form is not maintainable? …OPD 2. Whether the plaintiff is estopped by his act and conduct from filing the present suit? …OPD 3. Whether the plaintiff is out of possession of the suit land, if so, its effect? …OPD 4. Relief. The issues No.1 to 3 were answered in negative and the suit was decreed by learned trial Court on 18.6.1999. In appeal learned District Judge on 1.8.2000 has affirmed the judgment, decree dated 18.6.1999 of the learned trial Court, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the respondent was not in possession of the land in question at the time of filing of the suit, therefore, he is not entitled to the relief of injunction? 2. Whether the respondent has the alternative remedy of seeking partition and he could get his share in the partition proceedings? 3. Whether a co-sharer is within his right to raise construction over the land in his physical possession and he being a owner no decree of injunction can be passed against him? 6. I have heard learned counsel for the appellant and have also gone through the record; none appeared on behalf of the respondent. The learned counsel for the appellant has submitted that the two Courts below have erred in decreeing the suit of the respondent, who is not in possession of the suit land; on the contrary the appellant is in possession of the suit land and has a right to raise construction on the suit land. 4 Substantial questions of law No.1 to 3 7. The substantial questions of law No.1 to 3 are interconnected and therefore, all of them are being taken up collectively for disposal. Ex.DW-4/B is the copy of jamabandi for the year 1988-89 regarding land measuring 8-7 bighas comprised in khasra No.264/51 in which respondent is recorded owner alongwith others and has also been shown in possession. The note in red ink indicates that vide mutation No.563 of sale dated 26.3.1991Barfu Ram had sold 1/42 share measuring 0-4 bighas out of khasra No.264/51 in favour of Daya Ram. Ex.DW-4/A is the tatima of land measuring 4 biaswas comprised in khasra No.264/51/1 which was prepared by the Patwari on 13.6.1991. Ex.PW-6/A is the application and agreement dated 2.4.1991 for supply of electricity in which applicant has been shown Daya Ram. Ex.DW-6/B is the service connection order dated 9.4.1991 issued by Sub Divisional Officer, HPSEB. The Ex.DW-6/A and Ex.DW-6/B have not been connected with the suit land. 8. DW-1 Rattan Misra is the son of appellant Daya Ram. He has stated that land measuring 4 biswas was purchased by his father from Barfu Ram in the year 1991. Barfu Ram had handed over possession of the land to his father. Barfu Ram was in possession of the land which was sold by him to his father. In cross-examination he has stated that his father had purchased particular khasra No.264/51/1 He has stated that he does not know that mutation was attested of 1/42 share. The land which was handed over to his father abuts the road. He has not produced sale deed. DW-2 Barfu Ram has stated that he had sold 4 biswas of land to Daya Ram. The possession was handed 5 over to Daya Ram. In cross-examination he has stated that he had sold 1/42 share to Daya Ram. The khasra No.264/51 is joint. Tatima Ex.DW-4/A was not put to DW-2 Barfu Ram on behalf of the appellant whether possession of land shown in tatima Ex.DW-4/A was handed over to Daya Ram on the spot or not. He has stated that Daya Ram had stopped the work in May. The suit was filed on 6.4.1991. DW-3 Nand Lal has stated that defendant continued to raise construction till June 1991. The copy of sale deed vide which appellant had purchased the land from Barfu Ram has not been produced. DW-2 Barfu Ram has admitted that land is joint. The mutation after the sale was also attested in favour of appellant of 1/42 share. There is no worth believing evidence on record that Barfu Ram was in exclusive possession of piece of land which he sold to appellant and put him in actual physical possession of specific portion of suit land. DW-1 has admitted that the land in question abuts the road. 9. The learned counsel for the appellant has relied Bachan Singh v. Swaran Singh 2000(2) SLJ.1773 and has submitted that respondent has not established his possession on the suit land, therefore he is not entitled to injunction against the appellant. He has submitted that mere raising of construction does not amount to ouster of the co-owner. Bachan Singh supra is not applicable in the facts and circumstances of the present case in as much as respondent is a co-sharer and he has established his possession on the suit land which has been corroborated by copy of jamabandi Ex.DW-4/B. The land in question abuts the road. The suit land has not been partitioned. The learned District Judge has relied several judgments on the point that on 6 a joint land a co-sharer has no right to raise construction without the consent of the other co-sharers till the land is partitioned. The remedy for appellant is to partition the land. Tatima Ex.DW-4/A is dated 13.6.1991 whereas mutation of sale is dated 26.3.1991 as mentioned in jamabandi Ex.DW-4/B. Tatima Ex.DW-4/A was not prepared when the sale was effected. Therefore, appellant cannot take benefit of tatima Ex.DW-4/A in order to show his possession when he purchased the land. The appellant was not put in possession of suit land by his vendor, therefore, he has no right to raise construction of suit land without the consent of other co-sharers till land is partitioned. There is no perversity in the impugned judgment. The view taken by learned District Judge emerges from the evidence on record. In second appeal re-appreciation of evidence is not possible. There is no merit in appeal. The substantial questions of law No.1 to 3 are decided against the appellants. 10. No other point was urged. 11. The result of the above discussion, appeal fails and is accordingly dismissed. May 31, 2010 (Kuldip Singh), (sks) Judge.