JUDGMENT : SATYEN VAIDYA, J. 1. By way of instant appeal, appellants have assailed judgment and decree dated 12.5.2008, passed by the learned District Judge, Mandi, District Mandi, H.P. in Civil Appeal No. 28 of 2007, whereby judgment and decree dated 20.1.2007, passed by learned Civil Judge (Junior Division) Court No. 1, Mandi, in Civil Suit No. 35 of 2004 was affirmed. 2. Parties hereafter shall be referred by the same status as they held before learned trial Court. Predecessor-in-interest of the appellants was plaintiff and respondents were the defendants. 3. The suit land comprised in khata No. 23/20, khatauni No. 34, khasra No. 3176/2688/2451, measuring 2-13-0 bighas, situated at Mohal Kummi, Illaqua Balh, Tehsil Sadar, District Mandi, H.P was joint between plaintiff, defendant No. 1 and other co-sharers. Defendant No. 1 had acquired a share,in the suit land, to the extent of 0-2-2 bighas by way of purchase from plaintiff. The other co-sharers had also purchased their respective shares in the suit land from plaintiff and had raised constructions thereon. 4. Plaintiff filed a suit for permanent prohibitory injunction, seeking thereby to restrain the defendants from digging and raising construction upon any part of the suit land till its partition and separation. It was also prayed that in case defendants succeed in raising the construction during pendency of the suit, same be ordered to be demolished and suit land be restored to its original vacant position through mandatory injunction. Plaintiff filed the suit on 14.7.2004 alleging inter-alia that defendants without getting their share partitioned had started raising construction w.e.f. 4.7.2004. It was also alleged that the construction being raised by defendants was on land which was in excess of their share. 5. Defendants contested the suit. It was submitted that defendant No. 1 had purchased the land from plaintiff. As per defendants, the plaintiff had sold about fifteen biswas of land out of the suit land to various persons, who had already raised their respective buildings. The defendants further maintained that plaintiff had entered into an agreement to sell with them and had handed over the specific portion out of the suit land to them. The sale deed was finally executed and registered between the parties on 8.7.1996. Defendants had raised the construction during 1996-97, which was complete in all respects before filing of suit. 6. The defendants further maintained that plaintiff had entered into an agreement to sell with them and had handed over the specific portion out of the suit land to them. The sale deed was finally executed and registered between the parties on 8.7.1996. Defendants had raised the construction during 1996-97, which was complete in all respects before filing of suit. 6. On the basis of pleadings of the parties, the learned trial Court framed following issues: “1. Whether the defendants are raising construction over the valuable portion of joint suit land as alleged? OPP 2. Whether the plaintiff is entitled for the relief of mandatory injunction, as prayed for? OPP 3. Whether the plaintiff is stopped from filing the present suit by his own act and conduct? OPD 4. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD 5. Whether the suit of the plaintiff is not maintainable? OPD 6. Relief.” All the issues were decided in negative and the suit of the plaintiff was dismissed. Learned trial Court held that the plaintiff had failed to identify the land on which, the defendants had raised construction. As per learned trial Court, without demarcation, such fact could not be proved. It was also held that the plaintiff could not prove that defendants had raised construction after filing the suit. Another factor that weighed with learned trial Court was that the plaintiff had already sold different parcels of land to different persons out of the suit land and such persons had raised their respective buildings. Since the plaintiff had not objected the construction raised by other purchasers of plots of land from plaintiff without partition of land, he could not legitimately question the right of defendants to raise construction. 7. Plaintiff assailed the judgment and decree passed by learned trial Court in First Appeal under Section 96 of the Code of Civil Procedure but remained unsuccessful. Learned Lower Appellate Court though held that the demarcation was not necessary for adjudication of issues arising in the suit, still the judgment and decree passed by learned trial Court was affirmed. Learned Lower Appellate Court observed that an admission was made by learned counsel for the defendants, during course of hearing of the appeal regarding defendants having raised construction inexcess to the extent of 14 biswansies. Learned Lower Appellate Court observed that an admission was made by learned counsel for the defendants, during course of hearing of the appeal regarding defendants having raised construction inexcess to the extent of 14 biswansies. The findings of learned trial Court, to the effect that plaintiff had failed to prove the construction of defendants to have been raised after filing of suit, was affirmed. On such basis, learned Lower Appellate Court held that the mandatory injunction as prayed for could not be granted and the remedy available to the plaintiff was to be compensated that too after partition of entire suit land. 8. The appeal was admitted on 23.7.2008 by this Court on the following substantial question of law: “Whether the judgment and decree under challenge is based upon misreading, mis-appreciation and non-appraisal of spot Tatima Ex.PW-1/A, Jamabandi Ext.PW-4/A and statement of Patwari PW-1, Kanungo PW-2 and spot witness Nand Lal and PW-4?” 9. I have heard learned counsel for the parties and have also gone through the records carefully. 10. Both the learned courts concurrently held that the construction raised by defendants was not proved to have been raised after filing of the suit. Learned counsel for the appellant-assailed such finding being perverse and relied upon the statement of PW-3 in support of his contention. Statement of PW-3 reveals that on its basis alone, the factum of defendants having raised construction after filing of suit cannot be said to have been proved. PW-3 simply stated that he had noticed the defendants carrying out digging works on the suit land in the year 2004. He did not state that no construction of defendants existed on the spot, when he had noticed the digging activity being carried by defendants. Merely, he had noticed some digging works being done cannot imply that the entire construction of the building was raised by them after filing of the suit. Thus, the findings recorded by both the learned courts below, as noticed above, cannot be said to be perverse or against the evidence on record. 11. Learned counsel for the appellant further contended with vehemence that since the excess use of land was proved against the defendants, learned Lower Appellate Court instead of dismissing the appeal of plaintiff should have directed the defendants to compensate him. As per him, the plaintiff will be unnecessarily put to multiplicity of litigation. 11. Learned counsel for the appellant further contended with vehemence that since the excess use of land was proved against the defendants, learned Lower Appellate Court instead of dismissing the appeal of plaintiff should have directed the defendants to compensate him. As per him, the plaintiff will be unnecessarily put to multiplicity of litigation. The contention so raised deserves to be rejected. Once the plaintiff had failed to prove that defendants had raised construction after filing of the suit, the relief of mandatory injunction was not available to him especially without proving that the area used in excess was part of the land falling in share of plaintiff. Admittedly, plaintiff had sold various plots of land from suit land to different persons. They had raised their respective buildings before filing of the suit. There is nothing on record to show the exact extent of land sold by plaintiff and the balance remaining with plaintiff. There is also nothing on record to show that to what extent other co-owners had utilized their respective shares. 12. Plaintiff was further disentitled from relief of mandatory injunction as he had failed to show that construction of defendants had subjected him to such injury which could not be compensated. When plaintiff had allowed other purchasers of the land to raise construction, it was not understandable as to how he could restrain the defendants from raising construction on the land purchased by defendant No. 1 that too without proving any special injury or irreparable loss. 13. As regards excess use of suit land, it is pertinent to notice that excess only was to the extent of 14 Biswansies and plaintiff had failed to prove that such excess use of land was not in existence at the time of filing of suit. The total area of suit land is 2-13-0 Bighas. Without partition of suit land, it cannot be ascertained that which of the co-owners will be affected by excess use of land by defendants. 14. The plaintiff has further failed to prove that the excess use of land by defendants is of such a nature which will be prejudicial to his right to such an extent that he cannot be compensated. 15. Further, plaintiff has not made any prayer for compensation/damages in the plaint. He has not chosen to amend the plaint during pendency of suit and appeal. 15. Further, plaintiff has not made any prayer for compensation/damages in the plaint. He has not chosen to amend the plaint during pendency of suit and appeal. Subsection (2) of Section 40 of Specific Reliefs Act provides that no relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint. 16. In view of above discussion, the substantial question of law as framed in the instant appeal is decided in negative. Resultantly, the appeal is dismissed. The judgment and decree dated 12.5.2008, passed by the learned District Judge, Mandi, District Mandi, H.P. in Civil Appeal No. 28 of 2007, affirming judgment and decree dated 20.1.2007, passed by learned Civil Judge (Junior Division) Court No. 1, Mandi, in Civil Suit No. 35 of 2004 is further affirmed. Pending applications, if any, also stand disposed of. Records of the learned courts below be returned forthwith.