M.R. Verma, J.:-This revision petition is directed against the judgment of the District Judge, Chamba dated 7.1.2000 whereby C.M.A No. 15 of 1999 preferred by the respondent-defendant (hereafter referred to as the defendant) against the order dated 13.9.1999 passed by the learned Senior Sub-Judge, Chamba thereby allowing an application of the petitioner-plaintiff (hereafter referred to as the plaintiff) under Order 39, Rule 1 and 2 C.P.C., has been set-aside and on the undertaking given by the defendant, he has been allowed to raise construction over the suit land.

2. Brief facts leading to the presentation of the petition are that the plaintiff had instituted a suit for permanent injunction restraining the defendant from raising any construction and for mandatory injunction to remove the Malwa or any other construction raised during die pendency of the suit over the land comprising Khasra No. 12067271, measuring 10 Bighas and 8 Biswas Khata Khatauni No. 374/425, situate in Mohal Sultanpur, Pargana Sach, Tehsil and District Chamba (hereafter referred to as the suit land). The case of the plaintiff as made out in the plaint is that the suit land is joint and undivided and the parties are co-sharers in the suit land. Therefore, the defendant has no right to raise construction thereon, but he has started raising construction over the said piece of land, hence the suit.

3. The defendant contested the claim on the grounds that the plaintiff has separated his share from Chuni Lal and Dhani Ram privately in the year 1992, but the entries could not be made in the record, that the plaintiff had sold the suit land through his power of attorney to one Heminder Singh and delivered possession thereof to him. Said Heminder Singh covered the suit land by erecting Pucca brick wall around it in the presence of the plaintiff and his attorney and after making such development, he sold the suit land to the defendant by a registered sale deed. The defendant started raising construction in March, 1999 and till rising of the construction upto plinth level, no objection was raised by the plaintiff, and that the suit had been instituted with a view to harass defendant and delay the construction work.

4. It was at the time of institution of the aforesaid suit that the plaintiff filed an application under Order 39, Rule 1 and 2 C.P.C. praying for restraining the defendant from raising construction over the suit land on the basis of the facts averred in the plaint and further claiming that in case the construction is not stopped, he would suffer irreparable loss which cannot be compensated in terms of money and that the balance of convenience is in favour of the plaintiff and there is every likelihood of his winning the case.

5. The defendant contested the application and denied the contents thereof and claimed that he had no other shelter to live at Chamba and the material collected by him for the purpose of construction will be rendered useless putting him to great financial loss for which he cannot be adequately compensated in terms of money.

6. The learned trial Judge vide his order dated 13.9.1999 allowed the application and therby granted the temporary injunction as prayed for.

7. Feeling aggrieved, the defendant preferred appeal before the learned District Judge, Chamba who vide the impugned judgment set-aside the order passed by the Senior Sub-Judge subject to the condition that the defendant would give an undertaking before the trial Court "that in case of partition, the land where he intends to raise construction is allotted to some other co-sharer, he would demolish the construction at his own costs". It is this order which has now been challenged by the plaintiff in this revision petition.

8. I have heard learned counsel for the parties and have also gone through the records.

9. It was contended for the plaintiff that the material placed before the Courts below clearly reveals that the plaintiff has a prima facie good case, balance of conveni