LAL CHAND BHARDWAJ Vs. JAGDISH KUMAR

JUDGEMENT

(1.) Feeling aggrieved by the order dated 18.6.2001 passed by the learned District Judge, Shimla in Civil Miscellaneous Appeal No.83 -S/14 of 2000 whereby the appeal of respondent No. l against the order dated 28.9.2000 passed by the learned Subordinate Judge (2), Shimla allowing the application of the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereafter referred to as the Code) in Civil Suit No.48/1 of 2000 has been set aside and the application of the petitioner has been dismissed, the petitioner has preferred the present petition.

(2.) Brief facts giving rise to the present petition are that the petitioner has instituted a suit for permanent prohibitory and mandatory injunction against the respondents in respect of the land comprising Khata Khatauni No. 112/224, khasra No.995/27 situate in Village Chamyana, Tehsil and District Shimla. The case of the petitioner, as made out in the plaint, is that the said land is jointly owned by the parties and respondent No.2 has sanctioned a map in favour of respondent No. 1 for raising construction over an area of 2 biswas of the said land which could not have been done because of the land being jointly owned by various co -sharers. Now, respondent No. l is trying to raise construction on the bets portion of the joint land which could not be done without partition. The petitioner also filed an application under Order 39 Rules I and 2 read with Section 151 of the Code for grant of temporary injunction restraining respondent No. 1 from raising any kind of construction over the land in suit during the pendency of the suit.

(3.) The defendant -respondent No. l resisted the suit and filed written statement wherein he raised the preliminary objections that the plaint lacks material particulars it is not maintainable especially when the petitioner had not come to the Court with clean hands, the suit is bad for non -joinder of necessary parties and that the plaintiff is estopped from instituting the suit. On merits it has been claimed that private partition has taken place between the co -sharers in respect of their joint land holdings and the plaintiff himself has constructed a house on a portion of the joint holding no share.