Rakesh Garg, J. - (1.) AS per the averments made in the suit, property measuring 24 Kanals 13 Marlas, as detailed in the head note of the plaint, is the joint ownership of Taraf Brahmins to the extent of 30 shares out of 90 shares and the appellants, being Brahmins of village Dohar, hold 6 shares therein in the entire Khewat No. 18 as per copy of Jamabandi for the year 1984 -85. According to the appellants, there stood 140 trees (i.e. 60 Rajain trees, 15 Mango trees, 10 Sarinh trees, 15 Dhamman trees and 40 Eucalyptus trees) in the suit property. The appellants, who are joint owners of the land also hold joint interest in the trees standing therein, whereas the defendants were having no title in the suit property except that their names were recorded as tenants at will in Khasra No. 95 of the Jamabandi. According to the appellants, the defendants being tenants have neither any right to cut any tree nor to raise any type of construction or change user of the property except with the consent of the landlord. According to them, the defendants never cultivated the suit property and entries in the revenue record were false and frivolous. Since the defendant respondents threatened to cut and remove the trees, the matter was reported to the Police and then the defendants claimed to have purchased some share of some other co -sharers. However, according to the plaintiff -appellants, even if the defendants were co -sharers, they had no right to remove the trees from the joint land without partition and further had no right to raise any construction without their consent. Hence, necessity arose to file the instant suit. Upon notice, the respondents appeared and filed a joint written statement raising various preliminary objections. On merits, it was stated that the suit property was recorded in the revenue record as Taraf Brahmins. Taraf Chang and Taraf Rajputan is the joint property of the proprietors of the village as per their share and the defendants were in exclusive possession of their respective shares and were also having residential houses in the suit property. It was further averred that they have also planted various kind of trees in the land falling to their shares. The defendants belong to Rajput community which had 40 shares in the suit property recorded as Taraf Rajputan. It was further replied that no such type of trees are standing in the suit land. It was further stated that the defendants were co -sharers in the suit property and owners to the extent of their shares and were in exclusive possession and thus, have every right to use the property as they like. It was further replied that the plaintiffs have got no right to interfere in their peaceful possession and enjoyment over the suit property. Rest of the averments were denied and dismissal of the suit was prayed for.
(2.) AFTER considering the evidence on record and the arguments raised, the trial Court vide its judgment and decree dated 04.12.2008 held that the plaintiffs were not entitled to the relief of injunction, as prayed, and thus dismissed the suit. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiffs filed an appeal, which was also dismissed by the first appellate Court vide its judgment and decree dated 28.01.2010. While dismissing the appeal, the lower appellate Court observed as under: "17. In order to prove his case, plaintiff Satish Chander has stated that they are members of Brahman Community and therefore, they are co -sharers in the Brahman Patti of the suit land. The defendants are recorded in the revenue record as tenants at Will. Therefore, the defendants cannot acquire any right or status of co -owners so long as partition is not effected. As such the defendants have no right to raise construction or cut the trees. In order to corroborate the oral evidence appellants/plaintiffs have placed on record Jamabandi of the joint khata of the suit land bearing khasra No. 1103(1 -3), 1133(3 -12), 1129(7 -14), 1211 (12 -4). Except the above evidence plaintiff has not placed on record any other evidence to further prove his case. On the other hand the defendant Sain Dass examined himself as DW 1 and Prem Singh one of the defendant as DW 2. Both the defendant witnesses have testified that the defendants are in exclusive possession of their share in the suit land. That all the defendants combined have got 9 share in the sham lal land. That the trees in dispute were planted by the defendants and they are also growing vegetables over the suit land. That any type of trees, alleged by the plaintiff in the plaint are not standing in the suit land. That the defendants are in possession over their share for the last 200 years. Even the police was called to settle the matter but they refused to interfere and directed the plaintiff to approach the appropriate authority for partition of the land. 18. In the considered opinion of the Court from the evidence adduced by the plaintiff/appellant on record. It is not established or proved on file that 60 Rajain trees, 15 Mango trees, 10 Sheesham trees, 15 Dhaman and 40 Eucalyptus trees are standing in the suit land. Neither any site plan nor any other evidence is there on the record to show that the alleged trees are standing on the suit land. Oral assertions on the part of the appellant/plaintiff would not prove their case. Further more co -sharer has every right to raise construction in the land which is in his exclusive possession subject to partition. It is admitted case of both the parties that suit property is still a joint khata and partition has not been effected so far. A perusal of the jamabandi Ex. P1 would show that he defendants Sain Das is in exclusive possession in khasra No. 1211 over his share. On the other hand plaintiff Satish Chander and others are not shown in exclusive possession over any specific area of the suit land. As such the status of plaintiff/appellant is no more than a joint co -sharer. In the interest of justice when the plaintiff -appellants are not in exclusive possession over any portion of the suit land, they are not entitled to restrain the defendants from making any construction or using the property which is in exclusive possession of the defendants. In fact in the authority referred by the appellant plaintiffs himself i.e. Bachan Singh v. Swaran Singh, it has been held that mere making of construction or improvement in the common property does not mean to ouster. That a co -owner can only be restrained from his act if the utility of the property is diminished then a co -owner out of possession can seek injunction."
(3.) STILL not satisfied, the plaintiffs have filed the instant appeal submitting that the following substantial questions of law arise in this appeal: 1. Whether both the Courts below have misread the evidence and thereby illegally decreed the suit against the plaintiff? 2. Whether a co -sharer can be granted injunction as the act of the other co -sharer is detrimental to the interest of the appellants? 3. Whether the relief of injunction can be denied merely on the basis that the defendants have purchased a very small piece of land out of the big chunk and have acquired all the rights over the suit property? 4. Whether the plaintiffs can seek injunction against the defendants from cutting of trees over the suit land as the plaintiffs have not planted the trees themselves?;