LACHHMAN AND OTHERS Vs. NAG RAM

JUDGEMENT

(1.) The present Regular Second Appeal is maintained by the appellants against the judgment and decree passed by learned District Judge, Kullu, District Kullu, in Civil Appeal No.27 of 2006, dated 25.7.2006, whereby the learned District Judge, Kullu, District Kullu, had set aside the judgment and decree passed by learned Civil Judge (Senior Division), Kullu, District Kullu, in Civil Suit No.143 of 2005, dated 19.4.2006.

(2.) Briefly stating facts giving rise to the present appeal are that appellants/plaintiffs (hereinafter referred to as 'the plaintiff') filed a suit for injunction against the respondent/defendant (hereinafter referred to as 'the defendant') claiming that they are joint owner of the land measuring 3-13-0 bighas entered in Khata No.942, Khatauni No.125 min/473 min. situated in Phati and Kothi Bajaura, Tehsil and District Kullu, H.P (hereinafter referred to as 'the suit land') alongwith the defendant. The entire land measuring 38-15 bighas entered in Khasra numbers Kitta 9 Khata No.125 min. Khatauni No.473 min of Phati and Kothi, Bajaura, Tehsil and District Kullu, including the suit land is partitioned. The suit land which is abutting National Highway- 21, is valuable one and is in joint ownership and possession of the parties to the suit. The defendant, however without getting the same partitioned started collecting the construction material over the suit land for raising construction of residential building thereon. The plaintiffs requested him not to raise any type of construction without getting it lawfully partitioned, but of no avail. He started digging the foundation for raising the construction of a building over the suit land on 14.8.2005. He was requested not to lay foundation over the suit land, but of no avail and he has flatly refused to admit the claim of the plaintiffs. The defendant filed written statement and averred that the revenue entries qua the suit land are not disputed. It is contended that the entire land comprised in Khasra No.942 was 3-3-13 bighas and out of it land measuring 0-8-16 bighas denoted by Khasra No.942/1 was acquired by H.P. P.W.D, thereby reducing the area of the suit land and to 3-4-0 bighas. The same is not joint and rather has been separated by the parties in family settlement having taken place in the year 1989.

(3.) The learned trial Court framed following issues :