RATTANI Vs. AMRIT LAL

JUDGEMENT

(1.) The instant appeal stands directed, against, the verdict pronounced, by, the learned First Appellate Court, whereunder, it, after partly allowing the defendant's appeal, as reared therebefore, rather hence affirmed, the decree, rendered, by the learned Civil Judge (Junior Division), Sarkaghat, District Mandi, visavis, the decree of permanent prohibitory injunction, whereas it reversed, the relief of mandatory injunction, recorded, visavis, the suit property, by the learned trial Judge. The aggrieved therefrom, has, hence preferred the instant appeal, before this Court.

(2.) Briefly stated the facts of the case are that the parties to the suit along with other cosharers were joint owners in possession of land comprising khewat No. 145, khatauni No. 241, khasra No. 2188, 2194 and measuring 0 0689 hectares, situated in village Jamsai/226, Tehsil Sarkaghat, District Mandi. The defendant had purchased 9/135 share of Smt. Satya Devi of the suit land and thus he had become joint owner of the same along with the plaintiff and other cosharers. On 16.1999, the defendant constructed a Dhara towards front side of khasra No. 2195/1 with a motive to occupy the best and valuable portion of the suit land. Despite fact that partition case was pending before the Assistant Collector 1st Grade, Sarkaghat. The plaintiff prayed for a decree of permanent prohibitory injunction for restraining the defendant from raising construction over the suit land till partition and for mandatory injunction directing the defendant to demolish the Dhara constructed by him.

(3.) The defendant contested the suit. He filed written statement, wherein he alleged that the joint land was partitioned among the cosharers in a private partition, all the cosharers had been coming in separate possession of their respective share since the time of private partition. The defendant had purchased share of Smt. Satya Devi and thus he become joint owner in possession of the suit land. The defendant had raised construction on a portion, which was in possession of Smt. Satya Devi. Thus, the construction was within his own share. The defendant also contested the suit on preliminary objection such as cause of action, nonjoinder of necessary parties and estoppel. In nut shell the defendant refuted the case of the plaintiff and he prayed for dismissal of the suit.