SURINDER MOHAN Vs. RAMESH KUMAR & ANR

JUDGEMENT

(1.) Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree dated 30.8.2007, passed by learned District Judge, Sirmaur, District Nahan, H.P., affirming the judgment and decree dated 25.10.2005, passed by learned Civil Judge (Senior Division) Rajgarh, District Sirmaur, H.P., in Civil Suit No.81/1 of 2004, whereby suit for injunction filed by the plaintiff was dismissed.

(2.) In nutshell, facts of the case are that present appellant(hereinafter referred to as the plaintiff) filed suit seeking relief of permanent prohibitory injunction restraining the defendants(hereinafter referred to as the respondents) from raising construction or changing the nature of the land comprised in khata/ khatauni No.72min/116min, khasra Nos.1093/1022/1017, measuring 13 biswas situated in village Johana, Tehsil Pachhad, District Sirmaur, H.P (hereinafter referred to as the suit land). Plaintiff averred in the plaint that on 20.8.2004, defendants with mala-fide intention to raise construction over the suit land started digging the suit land with JCB Machine and in order to level the same for raising construction thereon without the consent of the plaintiff. Plaintiff further averred that since suit land is joint between the parties, the plaintiff being co-sharer is owner of every inch of the suit land till the same is legally partitioned by metes and bounds. Plaintiff further averred in the plaint that the suit land is precious land since it falls in front of Shimla-Dehradun road and defendants solely with a view to grab the best portion of the suit land has resorted to illegal construction over that portion of the land. In view of the aforesaid background, plaintiff filed suit for injunction against the defendants.

(3.) Defendants by way of filing written statement refuted the claim put forth on behalf of the plaintiff on the grounds of maintainability, locus standi, cause of action and misrepresentation of the facts. Defendants also denied the case of the plaintiff on merits by disputing the status of the plaintiff being co-sharer in the suit land. Defendant specifically averred that there is old Abadi which belongs to them and they are raising construction of a dwelling house over which the old Abadi/house was situated. Defendants specifically denied that the suit land is joint between the parties, rather defendants claimed that plaintiff preferred the present suit with mala-fide intention in order to harass them.