Dharam Chand Chaudhary, Judge (oral)

Appellant, hereinafter referred to as ‘the plaintiff’, is in second appeal before this Court, because learned District Judge (Forest), Shimla, vide judgment dated 31.7.2013, passed in Civil Appeal No.46-S/13 of 2012/11, has reversed the judgment and decree dated 30.4.2011, passed by learned Civil Judge (Senior Division), Court No.1, Shimla, in Civil Suit No.6/I of 2009 and dismissed the suit.

2. The appeal has been admitted on the following substantial questions of law:

1. Whether the learned lower Courts while allowing the appeal of the respondent/defendant and dismissing the cross-objections of the appellant/plaintiff by learned District Judge (Forest), Shimla and the judgment for not granting decree for mandatory injunction by learned Civil Judge (Senior Division), Shimla, have committed a mistake of law and the same is contrary to the established law of the land?

2. Whether the finding of fat while allowing the appeal and dismissing the cross objections by learned District Judge (Forest), Shimla and the judgment while not granting the decree for mandatory injunction passed by the learned Civil Judge (Senior Division), Shimla in impugned judgments and decree is a result of perversity?

3. Whether the findings given by the lower courts while allowing the appeal and dismissing the cross-objections by learned District Judge (Forest), Shimla and judgment for not granting decree for mandatory injunction by the learned Civil Judge (Senior Division), Shimla are contrary to and ignoring the evidence on record?”

3. The bone of contention in the present lis is Abadi land entered in Khewat No.8/8, Khatauni No.11, Khasra No.26, measuring 0-19-0 Bighas, situated in village Bhoung, Post Office Roundi, Tehsil and District Shimla, as per entries in the Jamabandi for the year 2000-01 Ext. PW1/A. The plaintiff claims his share therein to the extent of 4 biswas. Admittedly, his house and that of the respondent, hereinafter referred to as ‘the defendant’, are in existence on the spot, abutting to the land in dispute. As per plaintiff’s case, his house and that of the defendant as well as other co-sharers are in existence over a portion of the land in dispute and it is for this reason, the same is entered as Gair Mumkin Abadi in the Jamabandi. The remaining land is being used by all co-sharers jointly for common purposes like passage, marriages, religious functions and movements of cattle etc. without there being exclusive right of any particular co-sharer therein. The same is also being used as courtyard of his house and also that of the defendant. The defendant allegedly started digging a portion of the land in front of his house on 29.1.2009 to raise construction thereon forcibly with a view to deprive the plaintiff and other co-sharers from exercising their right of passage and other activities thereon in contravention of the customary and traditional arrangements being adhered to by the co-sharers. The defendant was requested to desist from such activity but of no avail, as he is bent upon to grab and occupy the same to the detrimental of the rights of plaintiff and other co-sharers thereon. Hence, the suit for decree of permanent prohibitory injunction, restraining thereby the defendant from interfering and encroaching upon the land in dispute and also to remove the obstruction, if any, caused during the pendency of the suit.

4. In the written statement, the defendant has contested the suit on the ground of maintainability, estoppel and also raised question of cause of action. On merits, it is claimed that the land stands divided between the parties right from the time of their ancestors and is now in possession of the parties to the extent of their respective shares. It is denied that the vacant land is being used for common purposes. It has further been submitted that whatever area falls in front of the house of the right holders, the same has been allotted to them and is in their exclusive