BHUPINDER SINGH THAKUR Vs. KANWAR SINGH AND ORS

JUDGEMENT

(1.) Instant regular second appeal filed under Section 100 of the CPC, is directed against the judgment dated 4.6.2005, passed by the learned District Judge, Shimla, H.P., in Civil Appeal No. 106-S/13 of 2002, affirming the judgment and decree dated 31.10.2002, passed by the learned Sub Judge, Ist Class, Court No.3, Shimla, in Case No. 485/1 of 96/95, whereby suit for permanent prohibitory injunction having been filed by appellant/plaintiff came to be dismissed.

(2.) Briefly stated facts as emerge from the record are that the (appellant herein after referred to as the plaintiff) filed suit for permanent prohibitory injunction against the respondents (defendants for the sake of brevity), averring therein that he is co-owner in possession of the land comprising khasra No. 51, Khata Khatauni No. 1 min/1 min, measuring four bighas and fifteen biswas (in short "the suit land") situated in village Neri, Tehsil & District Shimla, H.P. Plaintiff further alleged in the plaint that his father namely Bhagat Ram expired on 15.2.1995 and thereafter, he and other LRs of his father, succeeded to his estate, however, no formal mutation of inheritance was attested by the revenue authorities in their name. As per the plaintiff, he as well as other co-sharers have their ancestral house situated over the suit land and are residing alongwith their family members in the same. As per the plaintiff, courtyard is situated just in front of their said ancestral house, whereupon defendants are trying to raise construction and also thereby trying to change nature of the suit land. Plaintiff averred before the court below that in case, defendants succeed in raising structure on the aforesaid courtyard of the ancestral house, light, air and sunshine of the house, shall be adversely affected, as the premises, which is in possession of the plaintiff in the ancestral house, shall become dark, dingy and inhabitable. Plaintiff further alleged that adjacent to cow shed in the ground storey of the ancestral house, there is a place for keeping cattle and in case, defendants succeed in raising construction of the court yard of the ancestral house, it will obstruct the passage specifically left for the cattle on the spot. As per the plaintiff, he and other co-sharers are keeping their cattle on the spot, from time immemorial. Lastly, plaintiff averred in the plaint that the suit land is joint between the plaintiff, defendants and other co-sharers and defendants have no right whatsoever, to change the nature of the suit land and raise construction that too on the best portion of it till its regular partition among all the co-sharers. With the aforesaid pleadings, plaintiff sought decree for permanent prohibitory injunction against the defendants to the effect that they be restrained from raising any construction over the suit land till the regular partition of the same.

(3.) Defendants specifically pleaded before the Court below that the plaintiff has not approached the Court with clean hands as he has suppressed the material information with regard to the partition of the suit land already effected inter-se the parties on 4.9.1983. On merits, defendants denied the claim of the plaintiff by stating that the plaintiff is not the co-owner in possession of the suit land with them because land stands partitioned between the plaintiff and the defendants vide family settlement dated 4.9.1983. As per the defendants, parties to the lis have been occupying their respective shares and they are in possession of it and they have divided their respective shares without any interruption of the other parties and as such, plaintiff has no right, title or interest over the suit land. The defendants further alleged that family partition was executed in the presence of other co-sharers and with their respective consents and instant suit has been filed by the plaintiff solely with a view to harass other co-sharers. While admitting that there is ancestral house situated over the suit land, defendants claimed that by virtue of aforesaid family partition, ancestral house alongwith vacant land in front of the house as well as courtyard, was granted to them in the family settlement and as such, they have every right, title or interest, to raise construction over it. Defendants specifically denied that they are trying to change the nature of the suit land by raising construction and it will adversely affect light and air of ancestral house. The defendants further stated in the written statement that the aforesaid family settlement was reflected in the revenue record and in terms of same, all the co-sharers are in physical possession of the suit land. The defendants also denied that they are trying to grab the best portion of the suit land.