SHIV RAM Vs. POLA RAM

JUDGEMENT

(1.) Instant petition filed under Art. 227 of the Constitution of India, lays challenge to order dtd. 25/4/2022 passed by learned Additional District Judge, Nalagarh in Civil Mis. Appeal No. 19-NL/14 of 2022, affirming order dtd. 7/4/2022 passed by learned Senior Civil Judge, Nalagarh, District Solan, Himachal Pradesh in Misc. Civil Application No. 186/6 of 21 in Civil Suit No. 235/1 of 21, whereby an application filed under Order XXXIX, rules 1 and 2 read with S.151 CPC, filed by the respondent/plaintiff (hereinafter, 'plaintiff') praying for injunction against the petitioners/defendants (hereinafter, 'defendants'), came to be allowed.

(2.) Precisely, the facts of the case, as emerge from the record, are that the plaintiff filed a suit for permanent prohibitory injunction (Annexure P-1) against the defendants, claiming therein himself to be owner and cosharer in possession in the suit land, as per respective shares, as mentioned in enclosed copy of Jamabandi. In nutshell, the plaintiff claimed that suit land measuring 33/8/0 Bigha bearing Khasra Nos. 207, 216, 217, 289, 303, 304, 319,320, 321, 324, 325, 402 and 403, Kita 13 situate in Village Malkumajra, HB No. 184, Tehsil Baddi, District Solan, Himachal Pradesh, (hereinafter, 'suit land') is jointly owned and possessed by the cosharers. Plaintiff averred that till the time, suit land is partitioned by metes and bounds, defendant, who has started construction over specific portion of suit land is required to be restrained from doing so, till the time, suit property is partitioned by metes and bounds. Alongwith suit, plaintiff also filed an application under Order XXXIX rules 1 and 2 CPC, praying therein to restrain the defendants from raising any construction over the suit land during the pendency of the suit.

(3.) Defendants contested the prayer in the application by filing reply to the application and written statement to the plaint, wherein they claimed that the parties to suit are eight brothers including them and they have joint land measuring 21-6 Bigha, inherited by them from their ancestors. Defendants claimed that the suit land in Malkumajra was given to all of them by one Smt. Paro (their maternal aunt) by executing a Will. It is further averred by the defendants that four brother including plaintiff settled at Village Thana and four brothers Shiv Ram (defendant), Dalip, Shri Hari Chand and Shri Sher Singh in Village Malkumajra. Defendants averred that they raised construction of houses over joint land in respective villages but no objection was ever raised by them at the time of raising construction by co-sharers and now when, defendants have started construction over Khasra No. 320, as old house has outlived its life, with malafide intention, present suit has been filed, on wrong facts, with a view to harass them. Defendants claimed that share of defendant No.1 is to the extent of 2 Bigha in the suit land, whereas, he is proposing to raise construction over 5 Biswa of land, as such, he cannot be restrained from completing the construction, especially when all the co-sharers have raised construction over joint land. Defendants also denied that the proposed construction over Khasra No. 320 is detrimental to the rights of the co-sharers and shall cause irreparable loss to the plaintiff, whereas, no prejudice shall be caused to the plaintiff and other co-shares if he is permitted to complete the construction over small portion of suit land.