IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 299 of 1996 Decided on : March 30, 2010 Mahant Ram and another …Appellants Versus Biri Singh and others ...Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Rajnish K. Lall, Advocate vice Mr. K.D. Sood, Advocate. For the Respondents: Mr. Rajiv Jiwan, Advocate with Mr. Haresh Sood, Advocate. Surjit Singh, Judge (oral) This Regular Second Appeal, filed by the plaintiffs-appellants, was admitted on the following two substantial questions of law, vide order dated 23.10.1997: “1. Whether the findings of the Court below are vitiated of being based on inadmissible oral and documentary evidence and in disregard to the revenue records to which the presumption of truth is attached? 2. Whether wrong inferences have been drawn from the facts proved on record which has been wrongly held that the parties are joint and there is no private partition between the parties? 2. Facts relevant for the disposal of appeal may be noticed. Plaintiffs filed a suit for declaration that they were Whether reporters of the local papers may be allowed to see the judgment? …2… owners in possession of the suit land, situate in village Amarsingh Pura, Pargana Sarium, Tehsil Ghumarwin, District Bilaspur. By way of further relief they prayed for issuance of permanent prohibitory injunction restraining the respondents-defendants from interfering in their possession over the suit land. 3. It was pleaded that the parties are descendants of a common ancestor, named Fithu, who had four sons, named Govind, Kashu, Munshi and Sher Singh. Govind was from one wife and the other three from another wife. Fithu had land in two villages, namely Amarsingh Pura and Nalti. Plaintiffs claimed that their predecessor-in-interest Govind, in a private partition, made by Fithu during his life time, was given the suit land situate in village Amarsingh Pura while the other three brothers were given the land situate in village Nalti and this was done long back. It was further pleaded that ever since the parties had been coming in separate possession of the land, fallen to their respective shares in the said partition, but in the revenue papers, the suit land was being recorded in the joint ownership of all the parties, though in exclusive possession of the plaintiffs. 4. Respondents-defendants contested the suit. They denied that there had been any partition. They stated that property was joint of the parties, though in exclusive possession of the co-sharers. …3… 5. Trial Court dismissed the suit, holding that there had not been any partition and injunction cannot bee issued against one co-sharer on the request of the other. 6. Appeal filed by the appellants-plaintiffs in the Court of District Judge stands dismissed. 7. I have heard the learned counsel for the parties and gone through the record. 8. An application for additional evidence has been moved by the appellants. The same is CMP No.482 of 1996. It is stated in the application that after the filing of the present appeal, appellants came to know that partition had taken place prior to their birth and to that effect there are some orders passed by the Revenue Officer of the erstwhile State of Bilaspur. Copies of those orders have been filed alongwith the application. The orders and some other documents, attached with the application, do not substantiate the plea of partition raised by the appellants- plaintiffs. The papers and the orders show that on Fithu’s death his estate was mutated in the name of his four sons, in equal shares. Predecessor-in-interest of the plaintiffs, namely Govind, claimed that he was entitled to ½ share on the basis of rule of Chunda Wand. His plea was accepted and he was ordered to be entered as joint owner with his other brothers from the other wife of his father to the extent of ½ share. Therefore, application for additional evidence is dismissed. …4… 9. I have been taken through the documentary evidence as also the oral evidence. There is a document proved by the plaintiffs themselves, which is Ext. PB. The document is in the form of order passed by the Divisional Commissioner on 24.10.1986. A reading of the order shows that respondents-defendants had applied for partition of the joint land measuring 55 bighas 14 biswas, situate in village Amarsingh Pura. Appellants opposed that prayer. Their plea of private partition did not find favour with the authorities and the same was, therefore, rejected. Copies of entries in Jamabandis for the year 1982-83, Ext. PA; for the year 1971-72, Ext. PB and for the year 1956-57, Ext. RA show that the suit land situate in village Amarsingh Pura is in the joint ownership of all the parties, though in exclusive possession of the plaintiffs, as co-sharers. Hence, the plea that there had been a private partition and in the said partition suit land fell to the shares of the plaintiffs cannot be accepted. 10. It is submitted by the learned counsel for the appellants that since the plaintiffs are in exclusive possession of the suit land, they are entitled to relief of injunction. Submission has been noticed only to be rejected. Every co- sharer has the right to enjoy every inch of the joint property in a husband like manner and if it is so, question of issuance of injunction restraining a co-sharer from enjoying the joint property does not arise. …5… 11. For the foregoing reasons, both the substantial questions of law, on which the appeal was admitted, are answered against the appellants and the appeal is dismissed. March 30, 2010 (ss) (Surjit Singh), J