PREM LAL Vs. NAND LAL

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the judgment dated 28.2.2019 passed by learned Additional District Judge, Sundernagar, District Mandi, Himachal Pradesh in Civil .Misc. Appeal No. 77/19, setting aside order dated 22.11.2019 passed in CMA No. 59-VI/2017 in Civil Suit No. 52-I/2017, whereby learned trial Court, while allowing application under Order XXXIX, rules 1 and 2 CPC, having been filed by the petitioner/plaintiff (hereinafter, 'plaintiff') restrained the respondent/defendant (hereinafter, 'defendant') from raising construction and changing nature of suit land till disposal of the suit.

(2.) Precisely, the facts of the case, as emerge from the record are that the plaintiff filed a suit for permanent prohibitory and mandatory injunction against the defendant with regard to suit land averring therein that the suit land comprising of Khewat No. 176, Khatauni No. 193, Khasra No. 842, measuring 00-07-10 Bigha, situate in Muhal Bhour, Tehsil Sundernagar, District Mandi, is recorded as joint between the plaintiff, defendant and other cosharers as per Jamabandi for the years 2012-13 and has not been partitioned between the parties as yet. Plaintiff averred that a portion of suit land abuts National Highway No. 21 but defendant has started raising construction on best and valuable portion of suit land. Plaintiff has claimed that he requested the defendant not to raise construction on the suit land, but in vain. Besides above, alongwith aforesaid suit, plaintiff also filed an application under Order XXXIX, rules 1 and 2 CPC, praying therein to restrain the defendant from raising construction over the suit land till the time, same is partitioned in accordance with law. With a view to have the discretionary relief of injunction during the pendency of the main suit, plaintiff specifically averred in the application that prima facie case and balance of convenience is also in his favour. Plaintiff also averred that he would suffer irreparable loss and injury, in case interim injunction is not granted in his favour.

(3.) Defendant, while filing written statement as well as reply to the stay application, pleaded that he had purchased 00-06-00 Bigha of suit land adjoining to National Highway from his father and in the year 1992, he had constructed two shops and two rooms on the ground floor and in the first floor, he had built four rooms with the consent of his father, Nanku. It is further averred in the written statement that plaintiff and others had become co-owner only after the death of Nanku, around 17 years back and now National Highways Authority of India has acquired half portion of both the shops for widening of the road as a consequence of which, half portion of shops and the house is to be demolished, hence, he is raising construction on the old house extending his house 20 feet backward on the land, which was already in his possession, as he has no house to live in.