SANTOSH Vs. BHAGAT CHAND

JUDGEMENT

(1.) This revision petition is directed against the order dated 16.1.1999 passed by the learned Sub Judge, Rohru, whereby an application moved by the petitioner -plaintiff, hereinafter referred to as the defendant, under Order 18 Rule 2(4), 18 and 17 -A read with Section 151 C.P.C. for leading f additional evidence has been dismissed.

(2.) The un -disputed facts are the plaintiff has instituted a suit for permanent prohibitory injunction restraining the respondents - defendants (hereinafter referred to as defendants) through family members, labourers, parents, servants, contractor etc. from interfering in the possession of the plaintiff over the land, khasra No. 576/1, measuring 270 square meters, situate in Chak Nagar Panchayat Rohru, District Shimla (hereinafter referred to as the suit land). The suit land was jointly purchased by plaintiff and defendant No. 1, Bhagat Chand in equal shares in the year 1988. Hereinafter facts as averred by the plaintiff are disputed by the defendants. Further case of the plaintiff is that the suit land had been partitioned between the plaintiff and defendants and he got the land towards the forest colony and the land towards D.D. Ghar was allotted to defendant No. 1. The parties started construction over their respective portions of land in the year 1991. Plaintiff completed her construction in the year 1993, whereas defendant No. l completed the same in the year 1996. However, a small portion of the area was left by the plaintiff to be covered with the slab due to shortage of material. ON 8.11.1996 she completed putting of the slab on such portion through a contractor, but the defendants dismantled that portion. It is claimed that the defendants had no right, title or interest over the suit land to the extent of 1/2 share towards the forest colony, but they are threatening to construct their stair case in the land and building falling xxx in the share of the plaintiff by use of force, hence the present suit. The defendants are contesting the suit. In the written statement, they have taken preliminary objections that the suit is not maintainable in the present form, that the plaintiff has no enforcable cause of action, that suit is bad for want of identification of suit land. On merits partition of the suit land, as alleged by the plaintiff, has been denied and it is claimed that the suit land is still joint and that ground storey over the suit land has been jointly constructed by them leaving a space of 5 feet in between two constructions which are duly used for staires for the upper storey(s) after the partition of the land inter -se the parties. It is further averred that the plaintiff without getting the land partitioned, wants to raise construction over a portion of her choice by grabing more are which the plaintiff has no right to do. Thus, the claim of the plaintiff has been denied. It was during the pendency of the aforesaid suit mat the plaintiff moved an application under Order 18 Rule 2(4) and Order 18 Rule 17 -A read with Section 151 C.P.C. for producing additional evidence on the ground that the copy of Khataunii filed by the plaintiff with the plaint has been exhibited inadvertently by the defendants and photographs of the house remained unexhibited and are to be exhibited. Site plans of the building, which were filed during the pendency of the suit and had been prepared by one Kamal, Junior Engineer, of the notified area Committee Rohm, are also to be produced in evidence and said Kamal is to be examined as a witness to prove separate possession of the parties. One Prithvi Raj is also to be examined.

(3.) I have heard learned counsel for the parties and also gone through the record.