JUDGMENT : SURESHWAR THAKUR, J. 1. The instant appeal, stands, directed by the aggrieved plaintiff, against, the verdict recorded by the learned First Appellate Court, upon, Civil Appeal No.19ADJ-II/13 of 2018, wherethrough, the learned First Appellate Court, has, reversed the verdict, and, decree, pronounced, vis-a-vis, suit khasra numbers, and, qua the plaintiff, and, wherethrough, the defendants were restrained, from, interfering with the suit khasra numbers, till, legal partition thereof occurs, through, metes, and, bounds. The plaintiff being aggrieved therefrom, hence through, casting the instant Regular Second Appeal, before this Court, prays for reversal of the verdict, rendered, by the learned First Appellate Court, upon, the afore civil appeal. 2. XXX XXX XXX 3. Briefly stated the facts of the case are that the plaintiff, defendants and other co-owners are in possession of the land comprised in khewat/khatauni No. 30/49, khasra Nos. 3, 16, 17, 22, 24, 270, 271, 272, 273, 276, 278, 279, 280, 282, 283, 284, 285, 286, 287, 290, 291, 292, 294, 295, 296, 678/409, 436, total kita-29, measuring 84-12bighas, situated at mauza Banjani, Tehsil Kandaghat, District Solan, H.P. The suit land is joint between the parties, as such no co-owners have right, title and interest to raise any kind of construction over any portion of the suit land without the permission and consent of the others till it is partitioned in accordance with law. That the defendants are quarrelsome persons and have no regard for the law and hence they have started digging the suit land to raise the construction over the best portion of the land and also started to cut and remove the valuable trees without the consent of the other co-owners. Plaintiff tried his level best to stop them not to do so but proved in vain. Hence the plaintiff filed suit for permanent prohibitory injunction against the defendants. 4. The defendants contested the suit by filing written statement, taking preliminary objections inter-alia, that, the plaintiff has no locus standi to file the present suit, the plaintiff is estopped to file the present suit, owing to his own act, conduct, and, acquiescence, and, that the plaintiff, is not, in possession of the suit land, as such, he is not entitled, for, the espoused decree, of, permanent prohibitory injunction. 5.
5. The plaintiff filed replication(s), to, the written statement(s) of the defendant(s), wherein, he denied, the, contents, of, the written statement(s) and re-affirmed and reasserted, the, averments, made in the plaint. 6. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for the decree of permanent prohibitory injunction restraining defendants from interfering, digging, cutting and removing valuable trees, raising construction or changing the nature of the suit land in the manner, as alleged? OPP 2. Whether the plaintiff has no locusstandi nor cause of action to file the present suit, as alleged? OPD 3. Whether the plaintiff is estopped by his own act and conduct to file the present suit, as alleged? OPD 4. Whether the plaintiff is not in possession of the land, as alleged? OPD 5. Relief. 7. On an appraisal of evidence, adduced before learned trial Court, the learned trial Court, decreed the plaintiffs' suit. In an appeal, preferred therefrom, by, the defendants/respondents herein, before the learned First Appellate Court, the latter Court allowed, the, appeal, and, set aside, the findings recorded by the learned trial Court. 8. Obviously, through, the instant Regular Second Appeal, cast, before this Court, by the plaintiff, he seeks reversal of the pronouncement, made, against him, by the learned first Appellate Court. 9. The learned trial Court, in, decreeing the plaintiff's suit, for rendition, of, a decree, of, permanent prohibitory injunction, vis-a-vis, the suit khasra numbers, and, against the defendants, had, hence made dependences, upon, (a) the apt jamabandi, appertaining to, the, suit khasra numbers, and, it making depiction(s), vis-a-vis, the, suit land, being recorded, to, be jointly owned, and, possessed by the recorded co-owners, and, thereupon, hence concluded, that, till a valid partition thereof, hence occurs, through metes and bounds, (b) rather thereupto, the, principle of 'unity of title, and, community of possession,' hence, remaining intact, and, thereafter proceeded to conclude, (c) especially, when no pleadings, stand, set forth by the plaintiff, qua his completely ousting, the, defendants, from, the, apt enjoyment(s), of, the jointly recorded suit land, nor any evidence in concurrence therewith, stood, adduced, qua, till occurrence, of, dismemberment, of, the joint estate, through, metes and bounds, no co-owner being entitled to, appropriate any portion of the jointly recorded land, vis-a-vis, his exclusive user.
However, the afore recorded conclusion, by the learned trial Court, does, unfold qua rather it grossly ousting the necessity, of, meteings, of, appropriate, and, apt deferences, vis-a-vis, the, nature of, the, lis engaging the parties, at contest, and, also vis-a-vis, the, depictions, made in the apt entries, borne in the apposite jamabandi, and, appertaining to the suit khasra numbers. Since Ext. PW-1/B, comprises, the, apposite jamabandi, and, appertains, to, the suit khasra numbers, and, it makes graphic reflections, vis-a-vis, the defendants, hence holding exclusive possession, of, the suit khasra numbers, as, mortgage(e) thereof, and, when a presumption of truth, is, attached, vis-a-vis, the afore reflections, occurring, in the column, of, possession, in, the apposite jamabandi, (i) and, when the afore presumption, of, truth attached thereto, hence, has remained unrebutted (ii) thereupon obviously, the afore reflections acquire conclusivity, and, the apt legal tenacities. The further effect thereof, is qua, when otherwise, and, reiteratedly when rather, not, in the aforestated manner, a joint interest, or a joint ownership, in the undivided suit property hence accrues or hence is, acquired, inasmuch, as, it being acquired, vis-a-vis, rather ancestral coparcenary property, hence through apt respective predecessors-in-interests, (iii) thereupon alone, the afore reflection(s), of, joint ownership, carried, in, the revenue record, hold absolute sway, (iv) and, concomitantly, till, dismemberment, of, joint suit land, hence occurs, through, metes and bounds, obviously thereupto, no co-owners, are, entitled, to, appropriate, vis-a-vis, his/their exclusive user, any, portion of, the undivided suit property, even if they hold, exclusive possession thereof, unless pleadings are cast, and, concomitant therewith evidence stands adduced, vis-a-vis, apposite complete ouster(s). 10. Be that as it may, the defendants, did not prior, to creation of a mortgage, vis-a-vis, them, hence hold, in, the afore manner, any joint ownership, in the suit property, and, when rather there through, as, mortgagees along with possession, they hence acquired co-ownership, in the undivided suit khasra numbers, (i) besides also qua the apposite specific portion, of the, suit property qua wherewith, they are mortgagee(s), hence, they also hence hold possession thereof.
Furthermore, when the validity, of, induction, of, the defendants, as mortgagee(s), with, possession upon the suit khasra numbers, hence remains unchallenged, (ii) thereupon the afore entries, vis-a-vis, the defendants, in as much as, qua theirs being mortgagee(s), with, possession, vis-a-vis, suit khasra numbers, is/are, readable (a) given it/theirs being construable, being a usufructory mortgage, being created, vis-a-vis, the defendants, and hence, the defendants being entitled, to, appropriate, the apt portion, of, the suit property, vis-a-vis, their exclusive user, for hence enabling them, to therefrom, settle the mortgage sums, of, money, (b) thereupon, for, facilitating the afore enablement(s) their afore possession, is, to be revered. Secondarily, unless vis-a-vis, the afore nature of mortgage created, qua, the suit khasra numbers, rather, the afore construction, is, meted, thereupon, the afore enablements would stand, hence baulked, (i) whereupon, the holistic purpose enshrined, in the concept, of, usufructary mortgage rather would stand negated, (ii) in aftermath, all the, concomitant ill-effect(s) thereof, being visited, qua, a, usufructory mortgage inasmuch, as, his being disabled to utilize the mortgaged property, (b) further corollary thereof, would be qua, the mortgagee being also perennially disabled, to, institute a suit for foreclosure, and, also the mortgagor being barred, to, recourse the apt reliefs, of, redemption, unless, the, liquidation, of, the mortgaged money vis-a-vis, mortgagor, is facilitated, hence in the requisite contemplated manner.
For avoiding, all, the afore ill consequences, and, also when, the, plaintiff, does not seek, the requisite declaration, for setting aside, the entry occurring, in the apposite jamabandi, and, appertaining, to the suit khasra numbers, and, its casting reflections, vis-a-vis, a usufructary mortgage, being created, qua the suit khasra numbers, vis-a-vis, the defendants, (c) and rather his only canvassing for, rendition of a decree of permanent prohibitory injunction, (d) thereupon with the plaintiff rather acquiescing, vis-a-vis the validity, of, creation, of, a usufructary mortgage, vis-a-vis, the defendants, and, appertaining to the suit khasra numbers, and, nor his filing a suit for, foreclosure, arising, from despite, the, prescribed time for settling, the, mortgage money, the latter remaining unliquidated, and, unrealized, (e) thereupon the conclusivity of the, defendants exclusivity of possession, on, a part of the suit property, also, concomitantly hence, dehors, the dismemberment of the joint suit property, by metes and bounds, (f) rather entitles the defendants, to, resist, the, plaintiff's suit, for rendition of a decree, of, permanent prohibitory injunction, and, also hence, the, verdict of the learned First Appellate Court, is enjoined to be validated, and, the verdict of the learned trial Court concerned, hence decreeing the suit, of, the plaintiff, enjoins its being reversed. 11. In aftermath, the impugned judgment and decree, is, validly recorded, and, does not suffer, from any infirmity or perversity, and, as a corollary thereof, no substantial question of law, much less a substantial question of law, arises for determination in this appeal. 12. In view of the above discussion, there is no merit in the instant appeal, and, it is dismissed accordingly. In sequel, the judgment and decree impugned before this Court is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.