DAYA RAM Vs. MANOHAR SINGH

JUDGEMENT

(1.) The Defendant has come in second appeal against judgment, decree of affirmation passed by learned District Judge, Shimla on 1.8.2000 in Civil Appeal No. 68 -S/13 of 1999, affirming judgment, decree dated 18.6.1999 passed by learned Sub Judge Ist Class, Court No. 1, Shimla in Case No. 259/1 of 95/91.

(2.) The facts in brief are that Manohar Singh Respondent had filed a suit for permanent prohibitory injunction against Appellant restraining him from raising construction or changing the nature of the land measuring 4 biswas comprised in khasra No. 264/51, situate at Mauza Tutu, Pargana Kaimili , Tehsil and Distt Shimla. It was alleged that one late Smt. Ganeshu was the owner of 1/2 share in land, whether reporters of Local Papers may be allowed to see the judgment? Yes which share was transferred by her to one Barfu Ram through registered sale deed and mutation to this effect was attested on 6.10.1990. Barfu Ram started raising construction over a portion of land and also started alienating various portions of the land to different persons without getting the land partitioned. Ganeshu had already transferred 14 biswas of land out of her share and as such she could not legally transfer 4 -4 bighas of land in the joint holding. The Respondent being a co -sharer requested Barfu Ram not to do illegal acts but to no avail. The Respondent filed suit against Barfu Ram which was pending before learned Senior Sub Judge, Shimla. Barfu Ram had transferred 1/42 share measuring 4 biswas out of the undivided khasra No. 264/51 measuring 8 -7 bighas and mutation was attested on 26.3.1991 in favour of the Appellant. The Appellant had threatened to raise construction without getting the land partitioned and therefore, the suit was filed.

(3.) The Appellant had contested the suit and took preliminary objections such as maintainability, estoppel. It has been alleged that Respondent is out of possession of the suit land; therefore, he is not entitled to injunction. On merits, it was admitted that Ganeshu was the owner of 1/2 share in the land comprised in khasra No. 264/51. She had transferred her entire share to Barfu Ram, who had sold land measuring 4 bighas to Appellant for consideration of Rs. 10,000/ - through a registered sale deed and possession was also delivered to him. The Appellant had already constructed foundation of his house by spending more than Rs. 50,000/ -, therefore, suit is not maintainable. The Appellant had developed 3 biswas of land to raise construction before filing of the suit. The Respondent has alternative remedy for partitioning the suit land. The Respondent had filed replication and refuted the stand of Appellant.