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2013 DIGILAW 413 (HP)

SUCHET SINGH v. TEJ SINGH

2013-05-13

KULDIP SINGH

body2013
JUDGMENT KULDIP SINGH, J 1. THIS revision is directed against the judgment dated 26.12.2012 passed by learned District Judge, Mandi in Civil Misc. Appeal No.14/2012, setting aside the order dated 23.7.2012 passed by learned Civil Judge (Sr. Division), Court No.1,Mandi in CMA No. 36-VI/2012. 2. THE facts in brief are that petitioner has filed a suit for permanent prohibitory injunction against respondent regarding the land comprised in khasra No.458, measuring 0-3-2 bighas, situate in Mauja Panjethi/365. According to the petitioner the suit land is jointly owned and possessed by the parties as well as other co-sharers, as per jamabandi 2007-08. The khasra No.458 abuts National Highway and is valuable piece of land. The respondent is raising construction over khasra No.458 without getting the joint holding partitioned. In the suit, petitioner had filed an application under Order 39 Rules 1,2 read with Section 151 CPC restraining the respondent from causing any interference and raising construction over khasra No.458, till the disposal of the suit. The suit has been contested by respondent by filing written statement. He has taken several preliminary objections, such as maintainability, petitioner is not entitled to discretionary relief of injunction, estoppel, cause of action, valuation. On merits, it has been stated that suit is malafide. The petitioner has not disclosed total holding of the co-sharers which is 7-4-2 bighas including the area of khasra No.458. The suit land is recorded in the ownership and possession of the parties but on spot the parties are in separate possession. The respondent is in exclusive possession of land comprised in khasra No.458 for the last about 24 years. 3. THE petitioner has constructed a building adjoining to khasra No.458 occupying more front to which he is entitled. The other co-owners have also raised their buildings over the joint land. The respondent in January, 2012 had given breast wall and levelled the plot. At that time the petitioner did not raise any objection. The respondent has filed reply to the application under Order 39 Rules 1, 2 read with Section 151 CPC and contested the application. The respondent has filed replication and reiterated his stand taken in the plaint. 4. THE learned trial Court on 23.7.2012 on the application under Order 39 Rules 1,2 read with Section 151 CPC directed the parties to maintain status quo qua nature, possession and construction till the disposal of the main suit. The respondent has filed replication and reiterated his stand taken in the plaint. 4. THE learned trial Court on 23.7.2012 on the application under Order 39 Rules 1,2 read with Section 151 CPC directed the parties to maintain status quo qua nature, possession and construction till the disposal of the main suit. The learned District Judge in appeal filed by the respondent has set aside the order dated 23.7.2012 and dismissed the application of the petitioner under Order 39 Rules 1, 2 read with Section 151 CPC on 26.12.2012, hence this revision. I have heard the learned counsel for the parties and have also gone through the record. As per jamabandi for the year 2007-08, khasra No.458 is owned by several persons including petitioner and respondent. They are also recorded in joint possession. In fact, the joint ownership of the suit land has not been denied by respondent. In the written statement, respondent has pleaded his exclusive possession over khasra No.458, this assertion of respondent does not find support from copy of jamabandi for the year 2007-08. 5. THE case of the petitioner is that land comprised in khasra No.458 is very valuable in comparison to other joint holding of the parties. The khasra No.458 abuts to National Highway. The respondent has started construction over khasra No.458 without the consent of the petitioner and without portioning the joint holding of the parties. The respondent has projected the case that other co-sharers including petitioner have constructed their buildings over joint holding and when respondent started his construction then petitioner has filed the suit to harass him. According to respondent, petitioner has no right in law or in equity to seek injunction against the respondent. 6. IT has not been specifically denied by respondent that khasra No.458 abuts National Highway. The place of construction of building of petitioner has not been identified. In any case, construction, if any, raised by petitioner over joint holding, it appears did not prejudicially affected the respondent. Therefore, he allowed such construction of petitioner without murmur. But on this ground alone, respondent cannot raise construction on joint holding and that too on best piece of land without the consent of other co-sharers or without the land partitioned. The learned District Judge has erred in requiring the petitioner to go for partition and get the joint holding partitioned. Therefore, he allowed such construction of petitioner without murmur. But on this ground alone, respondent cannot raise construction on joint holding and that too on best piece of land without the consent of other co-sharers or without the land partitioned. The learned District Judge has erred in requiring the petitioner to go for partition and get the joint holding partitioned. On the contrary, the respondent is to raise construction with the consent of other co-sharers and after getting joint holding partitioned. According to respondent he levelled the plot in January, 2012 and started construction in March, 2012 and at that stage the suit was filed on 13.3.2012. In the facts and circumstances, prima facie case, balance of convenience and irreparable loss are in favour of the petitioner and against the respondent. The learned trial Court has properly considered the material on record when he directed the parties to maintain status quo with respect to nature, possession and construction over the suit land. The learned District Judge has erred in allowing the appeal and setting aside the order dated 23.7.2012 of the trial Court passed in CMA No.36- VI/2012. 7. IN view of above, revision is allowed. Judgment dated 26.12.2012 passed by learned District Judge in Civil Misc. Appeal No.14/2012 is set aside and order dated 23.7.2012 of the trial Court passed in CMA No.36-VI/2012 is restored. The pending application(s), if any also disposed of.