JEEVAN DASS Vs. ROSHAN LAL

JUDGEMENT

(1.) THIS second appeal by the defendant is directed against the judgment and decree of the first Appellate Court, whereby the decree of the trial Court in a suit instituted against the appellant by respondent Roshan Lal, hereinafter called plaintiff, restraining the appellant-defendant from raising any construction on land measuring 1 Kanal 6 Marlas (559 Sq. mtrs.), bearing Khasra Nos.1082/313 and 1081/313, has been affirmed and appellant's appeal dismissed.

(2.) RELEVANT facts may be summed up thus. Respondent-plaintiff Roshan Lal is recorded as co-owner, to the extent of 1/10th share, in certain Khata alongwith several persons. In the year 1978, he (plaintiff Roshan Lal) sold, through a registered sale deed, 1/7th share in the suit land, which is a part of the aforesaid Khata, in favour of the appellant-defendant. The co- sharers of the plaintiff filed a suit, challenging the sale on the ground that plaintiff Roshan Lal had only 1/10th share in the Khata and, therefore, he could not have sold 1/7th share of the suit land. That suit was decreed by the trial Court. Appellant, who was a defendant in that suit, went in appeal to the Court of District Judge. In that appeal, co-sharers of plaintiff Roshan Lal made a statement that though Roshan Lal had only 1/10th share in the entire Khata, but the whole of the suit land, which bore Khasra No.313, was in possession of the plaintiff-respondent and the area of this property was less than the area to which he was entitled on account of his 1/10th share in the entire Khata. They also made a statement that since the suit land, i.e. old Khasra No.313, was in possession of Roshan Lal, at the time of the partition, whenever that might take place, they would not lay any claim to the said number and allow the entire area thereof to be allotted to Roshan Lal. As a result of the making of the aforesaid statement, appeal was withdrawn by the appellant-defendant.

(3.) AFTER the dismissal of the second appeal by this Court, Roshan Lal filed the suit, out of which this appeal has arisen. He sought permanent prohibitory injunction, restraining the appellant- defendant from raising any construction on the suit land. It was alleged that the appellant-defendant had started raising construction and that he had no right to do so, until the property was partitioned or his consent was obtained.