NAGESH KUMAR Vs. KEWAL KRISHAN

JUDGEMENT

(1.) This revision petition is directed against the judgment of the District Judge, Chamba dated 7-1-2000 whereby C.M.A. No. 15 of 1999 preferred by the respondent-defendant (hereafter referred to as 'the defendant') against the order dated 13-9-1999 passed by the learned Senior Sub-Judge, Chamba thereby allowing an application of the petitioner-plaintiff (hereafter referred to as 'the plaintiff') under Order 39, Rule 1 and 2 C.P.C., has been set-aside and on the undertaking given by the defendant, he has been allowed to raise construction over the suit land.

(2.) Brief facts leading to the presentation of the petition are that the plaintiff had instituted a suit for permanent injunction restraining the defendant from raising any construction and for mandatory injunction to remove the Malwa or any other construction raised during the pendency of the suit, over the land comprising Khasra No. 1206/271, measuring 10 Bighas and 8 Biswas Khata Khatauni No. 374/425, situate in Mohal Sultanpur, Pargana Sach, Tehsil and District Chamba (hereafter referred to as 'the suit land'). The case of the plaintiff as made out in the plaint is that the suit land is joint and undivided and the parties are co-sharers in the suit land. Therefore, the defendant has no right to raise construction thereon, but he has started raising construction over the said piece of land, hence the suit.

(3.) The defendant contested the claim on the ground that the plaintiff has separated his share from Chini Lal and Dhani Ram privately in the year 1992, but the entries could not be made in the record, that the plaintiff had sold the suit land through his power of attorney to one Heminder Singh and delivered possession thereof to him. Said Heminder Singh covered the suit land by erecting pucca brick wall around it in the presence of the plaintiff and his attorney and after making such development, he sold the suit land to the defendant by a registered sale deed. The defendant started raising construction in March, 1999 and till raising of the construction up to plinth level, no objection was raised by the plaintiff, and that the suit had been instituted with a view to harass defendant and delay the construction work.