Judgment Dharam Chand Chaudhary, J. Challenge herein is to the judgment and decree dated 16.6.2001 passed by learned District Judge, Kullu in Civil Appeal No.4 of 2001, decreeing thereby the suit filed by the respondents (hereinafter referred to as ‘the plaintiffs’) for mandatory injunction with a direction to the appellants (hereinafter referred to as ‘the defendants’) to remove the tin shed they constructed over a portion of the suit land despite ad interim injunction. 2. The subject matter of dispute is Abadi land measuring 0-4-0 bighas bearing Khasra No.4375 and 4374, Khata Khatauni No. 1066/1837 and 1838, situate in Phati and Kothi Naggar, Tehsil and District Kullu. The plaintiffs apprehending the interference over the suit land by raising construction over valuable portion thereof and more than their shares by the defendants had filed a civil suit in the court of learned Senior Sub Judge, Kullu {presently Civil Judge (Senior Division)}, which was assigned to the then Sub Judge, Kullu for the grant of permanent prohibitory injunction and in the event of the defendants were found to have raised construction over the suit land during the pendency of the suit for the grant of decree of mandatory injunction also. 3. The suit was resisted and contested on the grounds that the plaintiffs were not in possession of the suit land or any part thereof nor co-sharers. The suit land rather was in the joint ownership and possession of Nokhu, Smt. Daihali and one Ishru. In private partition, the same falls in the share of Nokhu, which, however, could not be given effect in revenue record, in view of the suit land being Abadi and Phati Abadi. Nokhu aforesaid constructed a house over Khasra No. 4374. The suit land in a family partition came to the share of Lihatu and Hetu. The suit land bearing Khasra No.4374 over which Shri Nokhu has raised construction of a house falls in the share of Hetu and the land bearing Khasra No.4375 to that of Lihatu. The land in the share of Hetu and the house was inherited by Geharu and Jeet Ram in equal shares. The suit land bearing Khasra No.4374 over which Shri Nokhu has raised construction of a house falls in the share of Hetu and the land bearing Khasra No.4375 to that of Lihatu. The land in the share of Hetu and the house was inherited by Geharu and Jeet Ram in equal shares. In the Jamabandi, the name of Jeet Ram, however, came to be omitted and by taking undue advantage of such mistake, the plaintiffs No.2 to 4, in connivance with Geharu, managed the attestation of the suit land including that in the share of Jeet Ram in favour of the plaintiffs No.2 to 4 on the basis of sale deed allegedly fictitious. After the death of Lihatu, who was owner in possession of land bearing Khasra No.4374, his heirs became owners in possession thereof and the defendants purchased land measuring 0-1 biswa out of Khasra No.4375 from Giano, one of his legal heirs. Other allegations in the plaint were denied being wrong. 4. The plaintiffs had also filed replication. On the basis of pleadings of the parties, learned trial judge had framed the following issues:- 1. Whether there exists no ‘gair-mumki-abadi’ over the suit land, as alleged? OPP. 2. Whether the suit land is jointly owned and possessed by the parties to the suit and other co-sharers, as alleged? OPP. 3. Whether the defendants are threatening to raise construction over the suit land with intent to dispossess the plaintiffs from their shares as alleged? OPP 4. If issues no. 1, 2 & 3 are proved in affirmative, whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as alleged/prayed for? OPP 5. In case defendants are found to have raised construction over the suit land during the pendency of the suit, whether the plaintiffs are entitled to possession thereof by way of mandatory injunction as prayed for? OPP 6. Whether the plaintiffs have got no locus-standi to file the instant suit? OPD 7. Whether the suit is barred by limitation? OPD 8. Whether the plaintiffs are estopped by their act and conduct from filing the instant suit? OPD 9. Whether the suit is bad for no-joinder of necessary parties? OPD 10. Whether the suit in present form is not maintainable? OPD 11. OPD 7. Whether the suit is barred by limitation? OPD 8. Whether the plaintiffs are estopped by their act and conduct from filing the instant suit? OPD 9. Whether the suit is bad for no-joinder of necessary parties? OPD 10. Whether the suit in present form is not maintainable? OPD 11. Whether the defendants came into possession over 0-1 biswas of land comprised in Khasra no.4375 by way of sale from Giani etc, as alleged, if so its effect? OPD 12. Relief. 5. After holding the trial and going through the evidence consisting of oral as well as documentary available on record as well as the submissions made on both sides, the suit was decreed partly for the relief of permanent prohibitory injunction whereas declined the decree for mandatory injunction while arriving at a conclusion that the plaintiffs had failed to pin point the exact Khasra number, on which the tin shed was constructed by the defendants while answering issue No.5 against them. 6. Aggrieved by such findings recorded on issue No.5 supra, the plaintiffs had approached learned lower appellate Court by filing an appeal. The lower appellate Court, on reappraisal of the facts and circumstances and also the evidence available on record, has reversed the findings recorded by learned trial Court on issue No.5 and decreed the suit for the relief of mandatory injunction also. 7. The legality and validity of the impugned judgment and decree has been sought to be quashed on the ground inter alia that learned trial court has misread and misconstrued the oral as well as documentary evidence produced by the parties on both sides and erroneously concluded that the construction over the suit land was raised during the pendency of the suit in departure to the settled legal position that a co-owner is not entitled to seek injunction in denial to the rights of other co-owners without there being any reference to the amount of injury and damages likely to be suffered by him if the injunction is declined. The co-sharers can not restrain another co-sharer from raising construction on the joint property as the equities in the event of raising construction can be justified by the forum competent to partition such property. The co-sharers can not restrain another co-sharer from raising construction on the joint property as the equities in the event of raising construction can be justified by the forum competent to partition such property. The objection that the plaintiffs were guilty of acquiescence and delay as the construction was raised by the defendants 4-5 years prior to institution of the suit has also not been taken into consideration. The site plant Ex.PW-4/A prepared by a clerk of Advocate could have not been relied upon in view of the identity of land over which the shed has been constructed not established, nor decree for mandatory injunction could have been passed. The appeal has been admitted on the following substantial question of law:- “1. Whether the learned courts below have mis-read and mis-construed the oral and documentary evidence on record, especially the statements of PW-1 Shukru Ram, PW-2 Krishan Kumar, DW-1 Chhape Ram and Ex.PW-4/A site plan? 2. Whether the partitioning court has sufficient power to adjust equity that may come up for consideration, on the basis of the facts that the defendants have made some construction without the consent of the other co-owners and the civil court should grant the relief of mandatory injunction or not pending the partition decision ? 3. Whether in the matter of demolition of construction, where the plaintiff is guilty of delay and acquiescence, relief of mandatory injunction ought to be granted, where an award of compensation by way of damages can be given for the injury caused or done? 8. It is during the pendency of this appeal, the appellants have filed an application under Order 41 Rule 27 CPC registered as CMP No. 332 of 2011 for seeking permission to produce in evidence a copy of sale deed No. 320, dated 25.2.1988 and also the copy of Jamabandi for the year 1986-87 by way of additional evidence to prove that the suit land was acquired by them by way of sale thereof to them by its previous owner and the attestation of mutation in their favour. 9. 9. The application, however, has been seriously opposed on the ground that the permission as being sought for producing the additional evidence cannot be granted at this stage and also that the evidence now intended to be produced is not essentially required for adjudication of the point in issue and rather if taken on record would confuse the entire things and also frustrate the judgment and decree passed by the trial court and also by the lower appellate court. Besides being contrary to the stand taken by the defendants in written statement to the suit. 10. On completion of the record, I have heard learned counsel on both sides and also gone through the records. 11. It is seen that the findings recorded by the trial Court on issues No.1 to 4 have since attained finality being not assailed any further by the defendants before the learned lower appellate court. Mr. Sanjeev Kuthiala, learned counsel representing them in the present appeal during the course of arguments has rather pointed out that they are not aggrieved in any manner whatsoever from the findings recorded by the trial court on issues No.1 to 4 and rather aggrieved only from reversal of findings as were recorded by the trial court on issue No.5 and thereby decreeing the suit for the relief of mandatory injunction also against them. The position so emerges from such submissions and perusal of the findings recorded on issues No.1to 4 by the trial court leave no manner of doubt that the suit land on the spot is abadi land and in the joint ownership and possession of the parties to the suit and also the intention of the defendants to raise construction thereon in complete ouster of the plaintiffs therefrom. 12. 12. It is in the light of such position settled at this stage, the relief of mandatory injunction granted by the learned appellate court while reversing the findings on issue No.5 has to be adjudged by this Court in the light of the given facts and circumstances and also the evidence available on record, however, before that the fate of the application under Order 41 Rule 27 CPC filed by the defendants during the pendency of this appeal has to be determined as in view of the law laid down by the apex court in State of Rajasthan vs. T.N. Sahani and others, (2001) 10 SCC, 619, an application of this nature has to be taken into consideration along with the main appeal and in the event of the court ceased of the matter found that the documents sought to be produced by way of additional evidence are necessary to pronounce the judgment more effectively and judiciously should allow the application and if not, the same can be dismissed. Also that to form any such opinion well before hearing arguments in the main appeal would be inappropriate. 13. The document, the copy of registered sale deed now intended to be produced by way of additional evidence demonstrates that the defendants had purchased 4/27 share i.e. 0-0-11 bigha (11 biswansi) from Smt. Giano, Smt. Gumtu, Mandas and Smt. Nimu. The sale deed is dated 25.2.1988. Annexed thereto is the copy of jamabandi for the year 1986-87. The permission to produce the same by way of additional evidence has been sought to establish that pursuant to the acquisition of the land by way of above sale transaction mutation No.4363 was also decided in the name of the defendants. 14. If coming to the stand of the defendants in written statement the same reads as follows:- “2. …………… It may be submitted here that though the estate of Hetu was inherited by his two sons Geharu and Jeet Ram, but when the subsequent jamabandies were prepared, the name of Jeet Ram was wrongly deleted from the jamabandi and Geharu was wrongly shown to be owner in possession and the plaintiffs by taking the undue advantage of the wrong revenue entries, in the connivance with Geharu wrongly got the mutation attested in the name of the plaintiffs No.2 to 4 including the share of Jeet Ram on the basis of some fictitious sale deed. Shri Jeet Ram has entered into some agreement with defendant No.1 and whereby he has transferred the possession of his share in the land contained in Khasra No.4374 in favour of the defendant No.1. After the death of Lihatu, who was owner in possession of Khasra No.4374, as per the family partition, his heirs became owners in possession of the same and from whom i.e. Giani etc., the defendants have purchased the land and thus on the basis of family partition the possession of the land measuring 0-1 biswas contained in Khasra No.4375, was delivered to the defendants and they are owners in possession of the same as per the aforesaid family partition. Thereafter the defendants have constructed tin roofed shed on the land measuring 0-1 biswas, contained in Khasra no.4375 long ago.” 15. The defence hereinabove reveals that the defendants have disclosed thereby two sources qua acquisition of the suit land i.e. firstly, by way of some agreement executed by one Jeet Ram and thereby transferred his share in the suit land in favour of defendant No.1 and consequently by way of sale deed in question sought to be produced by way additional evidence from Smt. Giano Devi etc. I am thus satisfied that both documents now intended to be produced in evidence are not necessary to pronounce the judgment in this appeal more judiciously and effectively and rather likely to create confusion that too at this stage when the trial court while answering issues No.1 to 4 has held the parties to the suit in joint ownership and possession of the suit land. Otherwise also, no cogent and plausible explanation as to why these documents pertaining to the year 1988 were not produced in evidence in the trial court at the time when the defendants were in the witness box is also forth coming. Thus, at this stage when a valuable right has accrued in favour of the plaintiffs due to non production of these documents, the same cannot be taken away by allowing the defendants to produce the same in evidence when no case thereto is made out. I thus find no merit in the application and dismiss the same accordingly. 16. Now coming to the point in issue, Mr. I thus find no merit in the application and dismiss the same accordingly. 16. Now coming to the point in issue, Mr. Kuthiala, has mainly emphasized that against a co-sharer the decree of mandatory injunction that too demolition of the construction already raised cannot be granted unless and until it is proved that substantial injury is likely to be suffered by the party seeking such injunction, if declined. It has also been contended that for want of evidence suggesting that the defendants had raised the construction over a best portion of the suit land and on a portion over and above their share no decree of mandatory injunction could have been passed. 17. On the other hand, Shri Surinder Sharma, Advocate appearing on behalf of the plaintiffs has contended that the defendants who have raised construction of the shed over a portion of the suit land at such a stage when the trial court had restrained them from changing the nature of the suit land cannot be said to be aggrieved from the decree of mandatory injunction passed against them. 18. Learned lower appellate court after reappraisal of the evidence produced by the parties has concluded as follows:-“ 16. It is as such proved that Khokha was raised forcibly by the defendants over the joint suit land despite injunction of the court. Consequently, law can not be permitted to become laughing stock. Illegal construction raised by the defendants require to be demolished to bring the same to its original position. 17. In such scenario, the trial court ought to have decreed the suit for mandatory injunction. But by not passing such decree, erred factually as well as in law. Therefore, appeal liable to be accepted and decree modified. Point answered accordingly.” 19. Nothing has been brought to the notice of this Court during the course of arguments as to how the findings so recorded are not legally and factually sustainable particularly when from the statement of PW-1, Shukru Ram, PW-2, Krishan Kumar and PW-3 Jindu Devi, it is established that on 21.2.1996 when the land was being demarcated by the revenue staff, the defendants picked up quarrel with the plaintiffs and thereby obstructed the partition proceedings. It is further established from the testimony of PW-1 that contrary to it the 1st defendant threatened on 25.2.1996 to raise construction over the suit land and change its nature. It is further established from the testimony of PW-1 that contrary to it the 1st defendant threatened on 25.2.1996 to raise construction over the suit land and change its nature. This has led in filing the suit along with application for interim injunction. The interim injunction was granted on 28.2.1996, it is so established from the testimony of PW-1 Shukru and even admitted by the 1st defendant also while in the witness box as DW-1. 20. With regard to the controversy as to whether the tin shed was in existence for the last 4-5 years over the suit land as is the case of the defendants or constructed on 5.11.1997 i.e. during the currency of the interim injunction passed by the trial court as is the case of the plaintiffs, PW-1 while in the witness box has stated that the shed was constructed on that day. PW-2, who as a matter of fact was Pradhan of the Gram Panchayat and PW-3, Jindu Devi, Ward Member, were present on 21.2.1996 at the time when demarcation of the land in dispute was being conducted, they both being the witnesses of same sequence while in the witness box have stated in one voice that on that day no construction was found to be raised on the suit land and rather two poles were found to be erected thereon. Learned appellate court has rightly appreciated such evidence produced by the plaintiff for the reason that no enmity of PW-2 and PW-3 with defendants or friendly relations with plaintiffs is established on record. 21. On the other hand, they being Pradhan, Ward Member and public representatives, cannot be said to have made the false statement for any extraneous consideration. No doubt from the statement of DW-1, it emerges that the tin shed was constructed about 4-5 years ago prior to institution of the suit and not on 5.11.1997. The fact, thus, remains that a tin shed was constructed over the suit land and when the same stand satisfactorily established from the testimony of plaintiff No.1 while in the witness box as PW-1 and PW-2 Krishan Kumar, PW-3 Smt. Jindu Devi. Since the defendants themselves admit the existence of tin shed over the suit land, therefore, the ground that the map Ex. PW-4/A being prepared by a clerk of advocate could have not been raised. Since the defendants themselves admit the existence of tin shed over the suit land, therefore, the ground that the map Ex. PW-4/A being prepared by a clerk of advocate could have not been raised. Merely that the map has been prepared by a clerk without disclosing as to what prejudice is caused thereby to the defendants, the plea so raised cannot be taken as genuine. It is no where the case of the defendants that the shed is not over the suit land or any portion thereof. Learned lower appellate court has thus rightly reversed the findings on issue No.5 while arriving at a conclusion that the tin shed has not been constructed by the defendants over the suit land. In view of the defendants have raised the construction of the tin shed during the pendency of the suit and at such a stage when by way of temporary injunction passed on 28.2.1996, status quo qua the joint possession and nature of the suit land was ordered to be maintained, the harm thereby caused to the dignity and majesty of law can only be recouped by demolition of the structure so raised in utter disregard of the order passed by a court of law. It was no where the case of the defendants that the construction so raised by them was not over best portion of the suit land or on a portion of the suit land over and above their share. I am thus not in agreement with the contentions to the contrary raised during the course of arguments in this appeal. There is no denial to the law laid down in Akshay Kumar Shaha vs. Bhajagobinda Shaha & Others, AIR 1930, Calcutta, 341, Krothapalli Satyanarayana vs. Koganti Ramaiah & others, AIR 1983 SC, 452, Prabhoo vs. Doodh Nath & Others, AIR 1978, Allahbad, 178, S. Palanivelu vs. K. Veradammal, AIR 1977 Dadras, 342 and R.S. Muthuswami Gounder vs. A.Annamallai & Others, AIR 1981, Madras, 220, however, with due regard the same is not applicable in this case particularly when the defendants are not justified in claiming equity as they raised the construction during the pendency of the suit and the currency of ad interim injunction. 22. In view of the above, findings recorded by learned lower appellate court on issue No.5, neither suffers from any illegality nor irregularity, hence cannot be said to be perverse. 23. 22. In view of the above, findings recorded by learned lower appellate court on issue No.5, neither suffers from any illegality nor irregularity, hence cannot be said to be perverse. 23. For the reasons recorded hereinabove, this appeal being devoid of any merit fails and the same is accordingly dismissed. Record be sent back to the quarter concerned.