IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RSA.No. 416 of 2007. Date of Decision :2nd April, 2008. Ambrish Vijay Rohal. …Appellant. Versus: Naginder Singh and others. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for judgment?1 For the appellant: Mr.M.S.Thakur, Advocate. For Respondent. Mr.Ramesh Verma, Advocate. Sanjay Karol, J(Oral). The appellant/plaintiff herein filed a suit for permanent prohibitory injunction restraining the defendants from changing the nature of the suit land, demolishing the old building, raising further construction upon the land as entered in Khewat No.5 min, Khatuni No.5, Khasra No. 673/43, total measuring 128 biswa, situated at Mauja Pateog, Tehsil and District Shimla (hereinafter referred to as the suit land). Based on the pleadings of the parties, the trial Court framed the following issues : 1. Whether the plaintiff is entitled to permanent prohibitory injunction, as prayed for?. …OPP. 2 .Whether the plaintiff is entitled to for mandatory injunction, as prayed for?, …OPP 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 3. Whether the suit is not maintainable, as alleged? …OPD. 4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged? …OPD. 5 .Whether the court has no pecuniary jurisdiction to try the suit, as alleged? OPD. 6. Whether the suit is bad under Order 2 Rule 2 C.P.C. as alleged? OPD 7 .Relief. Plaintiff’s suit was decreed and the judgment and decree dated 18th January, 2007 was assailed by the defendants, respondents herein before the District Judge, Shimla, being appeal No. 21-S/13 of 2007 and in terms of its judgment and decree dated 1st August, 2007, the same was accepted and the plaintiff’s suit was dismissed. I have heard learned counsel for the parties and gone through the record. It is an admitted case of the parties as is also evident from the revenue record Ext.PW-1/A, that the parties are co-sharers and jointly possessing the suit land. However, it has come on record through the statement of Sh. Ambrish Vijay Rohal (PW-2) that since the time of their forefathers both the parties have been living separately. Both parties have also raised separate construction on the suit land. The defendants have admitted to have constructed a separate house on the suit land to the exclusion of the plaintiff. The first appellate Court held that the parties were also having joint holdings in their village and the plaintiff having raised construction to the exclusion of the defendants in equity the plaintiff’s suit for injunction could not be decreed even if the construction was on an area in excess of the defendants’ share in the land. 3 The plaintiff has not filed any suit seeking partition of the land which is jointly possessed by the parties. In my view, the first appellate Court has rightly dismissed the plaintiff’s suit, balancing the equities, more so when the plaintiff himself has raised construction on the suit land to the exclusion of the defendants. The parties have been living separately since the time of their forefathers. It is not the case of the plaintiff that the construction is causing any nuisance to him. Eventually at the time of partition of the joint properties the equities can be balanced. In my view no substantial questions of law arise for consideration in the present appeal. I see no error in the impugned judgment and the appeal is accordingly dismissed. (Sanjay Karol) Judge. April 2, 2008(R)