JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Sirmaur at Nahan, H.P., dated 5.11.2005, passed in Civil Appeal No. 49-CA/13 of 2005. 2. "Key facts" necessary for the adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff), has instituted suit for permanent prohibitory injunction restraining the respondents-defendants (hereinafter referred to as the defendants) from interfering, digging foundation and raising construction in the land comprised in Khata Khatauni No. 159/253 to 255, Kh. Nos. 504/41 min, measuring 1 bigha 10 biswas, 504/41 min, measuring 2 bighas 3 biswas, 504/41 min, measuring 1 bigha 17 biswas, total land measuring 5-10 bighas, situated in Mauja Kolar, Tehsil Paonta Sahib, Distt. Sirmaur, H.P. (hereinafter referred to as the suit land). The case set up by the plaintiff is that she and defendants are co-sharers in possession of the suit land. The defendants have started changing the nature of the suit land by digging on the best portion thereof despite her opposition on 21.1.2004 without getting the suit land partitioned. The plaintiff would suffer irreparable loss as she will be deprived of the best portion of the suit land. 3. The suit was contested by the defendants by filing written statement. According to them, one Sh. Abdul Gafoor and Shakoor were co-sharers of the suit land alongwith other lands and in the year 1961 Abdul Gafoor sold the possession of whole of the Kh. No. 41 measuring 6.9. bighas i.e. the suit land to three persons namely, Jimmu, Jinda and Banda in equal shares i.e. 2.3 bighas to each and also sold some land out of his share to Sh. Sunder, husband of the plaintiff. Abdul Gafoor sold land from the joint property, so the names of purchasers did not figure in the ownership column of the jamabandi and were inserted in the possession column by giving them separate khatauni as per land record manual. In consequence thereof, Abdul Gafoor ceased to be the co-sharer of Sunder Singh after sale of specific field to Jimmu, Jinda and Banda. They have become absolute owners of that khasra number. In consequence thereof, Abdul Gafoor ceased to be the co-sharer of Sunder Singh after sale of specific field to Jimmu, Jinda and Banda. They have become absolute owners of that khasra number. When these khataunis were registered in favour of Jimmu, Jinda and Banda, their names were inserted in the revenue record by the consent of other co-sharers i.e. Sunder Singh etc., the husband of the plaintiff and at that time they did not object the insertion of those revenue entries in favour of predecessor-in-interest of the defendants. They have not dug up the foundation nor have they raised any construction. 4. The replication was filed. The learned Civil Judge (Jr. Divn.) Court No. 2, Paonta Sahib, framed the issues on 20.4.2004. The suit was decreed vide judgment dated 31.3.2005. The defendants, feeling aggrieved, preferred an appeal against the judgment and decree dated 31.3.2005. The learned District Judge, Sirmaur at Nahan, allowed the same on 5.11.2005. Hence, this regular second appeal. 5. The regular second appeal was admitted on the following substantial question of law on 6.3.2006: "1. Whether the learned first appellate Court erred in holding that specific portion of the joint land can be sold by a co-sharer in a joint property without partition of the land in question?" 6. Mr. Karan Singh Kanwar, Advocate, for the appellant has supported the judgment rendered by the trial Court dated 31.3.2005. He contended that the learned first appellate Court has erred in law by holding that specific portion of land could be sold by co-sharer in joint property without partition of land in question. On the other hand, Mr. G.D. Verma, Sr. Advocate, appearing with Mr. B.C. Verma, Advocate, has supported the judgment and decree of the learned first appellate Court dated 5.11.2005. 7. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully. 8. PW-1 Krishna Devi deposed that she is owner-in-possession of the half of the suit land after the death of her husband Sunder Singh. It is situated adjoining to Paonta-Nahan road. The defendants on 1.1.2004 at about 10/11:00 AM, started digging foundation and hurling threats of raising construction despite her opposition. She admitted that Sunder Singh after purchasing 1 bighas 7 biswas and 0.9 bighas from Kh. Nos. It is situated adjoining to Paonta-Nahan road. The defendants on 1.1.2004 at about 10/11:00 AM, started digging foundation and hurling threats of raising construction despite her opposition. She admitted that Sunder Singh after purchasing 1 bighas 7 biswas and 0.9 bighas from Kh. Nos. 95 and 96 has become absolute owner but denied the suggestion that Sunder Singh had no interest in Kh. No. 41. 9. PW-2 Laxmi Chand deposed that the disputed land is joint and plaintiff has her share in the same to the extent of 2 bighas 15 biswas and the same has not been partitioned. The defendants started digging the foundation on 1.11.2004. He admitted that some of the portion of land comprised in Kh. No. 41 had merged in the road but feigned ignorance about its actual area. 10. DW-1 Banda deposed that he along with Jinda and Jimmu purchased land from Abdul Gafoor. The possession was also taken. They have constructed their houses. The mutation was attested on the basis of the sale deed. He denied the suggestion that Sunder Singh was owner of two bighas 15 biswas of land in the suit land. 11. DW-2 Abdul Gafoor deposed that he along with his brother Shakur inherited the property of his father at Kolar, 9 bighas each. They were in separate possession. He sold his share of land adjoining to Nahan Paonta road to Jinda, Banda and Jimmu. The land was also sold to Sunder Singh measuring 1 bigha 7 biswas. The possession was handed over to the purchasers. The land was sold in the year 1961-62. The sale deed was executed in the year 1984-85. The mutation was also attested. 12. DW-3 Hari Singh deposed that Abdul Gafoor sold his land to Banda, Jinda and Jimmu in the year 1955-56 by taking earnest money and the possession was given at the same time but in cross-examination, he admitted that the earnest money was not given in his presence. 13. Initially, Kedar was owner-in-possession of the suit land bearing Kh. No. 102 and 103, measuring 6.9 bighas, Kh. No. 351 and 138 measuring 11.11 bighas, total land measuring 18.0 bighas. His sons Abdul Gafoor and Shakoor succeeded to his estate in equal shares and during settlement Kh. No. 41 was carved out of old Kh. Nos. 102 and 103, while Kh. Nos. 95 and 96 were carved out of old Kh. No. 138. No. 351 and 138 measuring 11.11 bighas, total land measuring 18.0 bighas. His sons Abdul Gafoor and Shakoor succeeded to his estate in equal shares and during settlement Kh. No. 41 was carved out of old Kh. Nos. 102 and 103, while Kh. Nos. 95 and 96 were carved out of old Kh. No. 138. Abdul Gafoor sold land measuring 1.7 bighas comprised in Kh. No. 96 to Sunder, the husband of the plaintiff and thus Sunder became absolute owner of Kh. Nos. 95 and 96, measuring 9.0 bighas and 1.7 bighas, respectively. Abdul Gafoor sold 2.3 bighas to Banda, Jimmu and Jinda, each. Separate Khatoni Nos. 188, 189 and 190 were also assigned. 14. PW-1 Krishna Devi has feigned her ignorance as to whether old khasra numbers of the suit land were 102 and 103 and out of Kh. Nos. 351 and 138, new Kh. Nos. 95 and 96 were sold to her husband Sunder and he became the absolute owner of the same. She has shown her inability to depose as to whether Kh. No. 41 was in possession of Gafoor whereas Kh. No. 95 was in possession of Shakoor and whether Gafoor sold Kh. No. 41 to Jimmu, Jinda and Banda. Abdul Gafoor has appeared as DW-2. According to him, the husband of the plaintiff was put in possession of Kh. Nos. 95 and 96. He has sold his share to defendants including Banda, Jimmu and Jinda, measuring 2.3. bighas each, in the year 1961. The possession was also delivered. 15. According to the jamabandi for the year 1950-51, Ext. D-11 Kedar owned Kh. Nos. 102 and 103, measuring 6.9 bighas including other land, whereas in the same jamabandi his sons, Abdul Shakoor and Abdul Gafoor are shown to be owners-in-possession of Kh. Nos. 102, 103 and 138 in khata No. 81/67, khatauni No. 187, total land measuring 15.9 bighas. According to Misal Haquiat for the year 1959-60, the same position is reflected which shows that Kh. No. 41 was carved out of Kh. Nos. 102 and 103, measuring 6.9 bighas while Kh. No. 95 was carved out of Kh. No. 646/138, measuring 9.0 bighas, total land measuring 15.9 bighas of which Abdul Gafoor son of Kadar was shown to be co-owner to the extent of 1/2 share with late Sunder Singh. According to the jamabandi for the year 1962-63, Ext. D-9 out of Kh. 102 and 103, measuring 6.9 bighas while Kh. No. 95 was carved out of Kh. No. 646/138, measuring 9.0 bighas, total land measuring 15.9 bighas of which Abdul Gafoor son of Kadar was shown to be co-owner to the extent of 1/2 share with late Sunder Singh. According to the jamabandi for the year 1962-63, Ext. D-9 out of Kh. No. 41, Abdul Gafoor sold 2.3 bighas to Jimnu, 2.3 bighas to Jinda and 2.3 bighas to Banda. These vendees are shown to be in physical possession of the respective land on the basis of sale so recorded in column No. 9 of the jamabandi. The same entries were reflected in jamabandi for the year 1967-68 Ext. D-8. It shows that plaintiff's husband Sunder is in physical possession of Kh. No. 95 and 96 on the basis of sale. The same position was reiterated in jamabandi for the year 1972-73 Ext. D-7 which shows defendants-vendees to be in exclusive possession of land. These entries were followed in subsequent jamabandi for the year 1977-78 Ext. D-6 and in jamabandi for the year 1982-83 Ext. D-5, jamabandi for the year 1987-88 Ext. D-3. The vendees Banda, Jimmu and Jinda were shown to be in exclusive possession of Kh. No. 504/41 min, 504/41 min, 504/41 min, measuring 2.3 bighas each on the basis of sale from Abdul Gafoor. The same position is shown in copy of jamabandi for the year 1997-98 Ext. D-2 and D-1, which also show that out of his share defendant Ulfat sold 4 biswas to defendant No. 1 Udey Singh. 16. The defendants have duly proved that Abdul Gafoor has sold specific share to defendants. They were put into possession. It is duly supported by the jamabandies which have not been refuted. Moreover, the plaintiff, being out of possession, could not file suit for permanent injunction, as per Bachan Singh Vs. Swaran Singh, AIR 2001 P&H 112 . The learned Division Bench has held as follows: "18. They were put into possession. It is duly supported by the jamabandies which have not been refuted. Moreover, the plaintiff, being out of possession, could not file suit for permanent injunction, as per Bachan Singh Vs. Swaran Singh, AIR 2001 P&H 112 . The learned Division Bench has held as follows: "18. On a consideration of the judicial pronouncements on the subject, we are of the opinion that: (i) a co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of co-owner out of possession. (ii) Mere making of construction or improvement of, in the common property does not' amount to ouster. (iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to' prevent the diminution of the value and utility of the property. (iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which, is detrimental to his interest. 19. In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co-owner. 20. In this view of the matter, we are unable to agree to the propositions laid down by the learned single Judge of this Court in Nazar Mohd. Khan v. Arshad All Khan and Ors. (supra) wherein his Lordship broadly stated that there is no denying the fact that a co-sharer has no right to raises construction until the land is partitioned by metes and bounds and so even when one of the co-sharers is in exclusive possession of a particular piece of land any other person can seek injunction restraining the other co-owner from raising construction. We accordingly overrule the said decision of the learned single judge of this Court and also the decisions in Mst. We accordingly overrule the said decision of the learned single judge of this Court and also the decisions in Mst. Parsini alias Mono v. Mahan Singh, 1982 P.L.J. 280, Om Prakash and others Vs. Chhaju Ram, AIR 1992 P&H 219 and Daulat Ram v. Dalip Singh 1989 (1) Rev, L.R. 523." 17. Abdul Gafoor was in exclusive possession of the suit land. It is reiterated that he has sold specific portion of the suit land. Separate khanaunis were also assigned, as noticed hereinabove. A specific portion of the land was sold to Sunder. He was put in possession. Thus, Sunder ceased to be the co-sharer of the suit land. No objection was raised by Sunder at the time when the vendees Banda, Jimmu and Jinda were put into possession and mutation was attested. Similar position is reflected in the jamabandies. It is also settled law that co-sharer out of possession, however, can seek relief of permanent injunction, if by the act of another co-sharer in possession, the value or utility of the property is diminished or such acts of the co-owner in possession are detrimental to the interest of other co-owners out of possession. Mere raising of construction or improvement in the common property does not amount to ouster. Moreover, the plaintiff ought to have filed suit for possession instead of injunction. Abdul Gafoor has already sold specific portion of land by way of sale deed in favour of Sunder Singh. The interest of Abdul Gafoor has already passed to Sunder Singh. Moreover, when he was also put in possession of the suit land, Section 44 of the Transfer of Property Act, would not be attracted. The substantial question of law is answered accordingly. 18. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending applications, if any.