KHIMA RAM Vs. MAST RAM, VIJAY KUMAR, RAVI, HARIMAN ALL

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 6.12.2008 rendered by the learned District Judge, Mandi in Civil Appeal No. 40 of 2008.

(2.) MATERIAL facts necessary for the adjudication of this Regular Second Appeal are that appellant - plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) filed a suit for permanent prohibitory and mandatory injunction against the respondents -defendants (hereinafter referred to as 'defendants for convenience sake). According to the averments made in the plaint, land comprised in Khata Khatauni No. 94/122, khasra No. 28 measuring 0 -3 -0 bighas situated in Mauja Siyanh, Tehsil Sadar, District Mandi, is recorded in the ownership of the plaintiff, defendants and other co -sharers and the land comprised in Khata Khatauni No. 93/122, Khasra No. 29 measuring 0 -4 -9 bighas situated in Mauza Siyanh/232, Tehsil Sadar, District Mandi, is recorded in the ownership and possession of plaintiff, predecessor -in -interest of defendants and one other co -sharer, i.e. Chand. The suit land is by the side of Tawan - Kummi road, on which the old house of the parties and other co -sharers is situated consisting of 12 room and the sisters of the plaintiff and predecessor -in -interest of the defendants were married. They are not in physical possession of the land comprised in Khasra No. 28. According to the averments contained in the plaint all the three brothers, namely, Garib Dass, Khima Ram and Chand Ram are living separately for the last 30 years and possessing four rooms each. Chand Ram got separated his share measuring 0 -0 -18 bighas out of khasra No. 28. Thereafter the plaintiff and predecessor -in -interest of defendants also mutually agreed to do the private partition among themselves and in the family partition, the land comprised in Khasra No. 28/2/1 measuring 0 -1 -1 bighas was allotted to Garib Dass whereas Khasra No. 28/2/2 plus share in Khasra No. 29 of Garib Dass was allotted to Khima Ram because Garib Dass has taken one Karam more land by the side of road in Khasra No. 28. Legal heirs of Larju Devi were added with Garib Dass and legal heirs of Karju Devi were added with Khima Ram. After the partition, the plaintiff is owner in possession of Khasra No. 28/2/2 alongwith legal heirs Smt. Karju Devi and Khasra No. 29 is jointly owned and possessed by the plaintiff alongwith Chand Ram and defendants. The rooms which have fallen in the share of plaintiff over khasra No. 28/2/2 and Khasra No. 29 are in a dilapidated condition. He wants to reconstruct the same. The defendants are obstructing him. He requested them time and again but the defendants paid no heed to his request. It is in these circumstances he has filed the suit restraining the defendants by way of permanent prohibitory injunction from causing any interference over the suit land.

(3.) PLAINTIFF filed replication. He has stated that the private partition, which was entered into between the parties bearing No. 552 and 546, was not cancelled on 17.10.2005. Issues were framed by the learned Civil Judge (Junior Division) on 30.4.2007. Learned Civil Judge (Junior Division) decreed the suit on 8.4.2008. The defendants were restrained from making interference over the land comprised in Khasra No. 29 and Khasra No. 28/2/2. However, the plaintiff cannot not raise any construction, due to which the lateral support of the house consisting of 12 rooms existing over Khasra No. 28 and 29, is damaged. Defendants preferred an appeal before the learned District Judge, Mndi. He allowed the same on 6.12.2008 and set aside the judgment and decree dated 8.4.2008 passed by the Civil Judge (Junior Division). Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: