Failure to prove entitlement to raise construction over joint land without partition.

Rajiv Sharma, J.

1. This Regular Second Appeal has been instituted against judgment and decree dated 16.10.2009 rendered by learned Additional District Judge, Fast Track Court, Hamirpur, Himachal Pradesh in Civil Appeal No. 60/2007.

2. “Key facts" necessary for adjudication of the present appeal are that respondents-plaintiffs (hereinafter referred to as ‘plaintiffs' for convenience sake) filed a suit for permanent prohibitory injunction and mandatory injunction against the appellants-defendants (hereinafter referred to as 'defendants' for convenience sake). According to the averments made in the plaint, suit land is joint between the parties and nature of land is agricultural and near the Abadi and constitutes best and valuable portion of the land. Defendants are threatening to raise the construction over the suit land to cover the more area than their share and further to cover best and valuable portion of the land. Defendants were asked not to raise construction without partition but they did not desist from unlawful acts.

3. Suit was contested by the defendants. Entries in the revenue record showing suit land to be joint inter se parties were not disputed. However, it was admitted that the defendants were raising construction over a small portion of suit land and same had been partitioned and coshareres are already in possession of their respective land. They started raising construction of two rooms set over Khasra No. 64 only and the foundations had been laid prior to filing of the suit in presence of the plaintiffs and they had not objected to it.

4. Replication was filed. Issues were framed by the trial Court on 11.2.2003. Suit was dismissed on 19.6.2007. Plaintiffs filed an appeal before Additional District Judge, Fast Track Court, Hamirpur. He allowed the same on 16.10.2009. Hence, this Regular Second Appeal.

5. The Regular Second Appeal was admitted on 2.12.2009, on the following substantial question of law:

Whether a co-sharer in exclusive possession is entitled to use and raise construction over the land in his possession, particularly when the same is not in excess of his share and more particularly when the construction proposed is only fractional i.e. 190 marlas out of 70 kanals 19 marlas?”

6. Mr. N.S. Chandel, Advocate, has supported the judgment and decree passed by trial Court.

7. Mr. G.D. Verma, learned Senior Advocate has supported the judgment and decree rendered by learned Additional District Judge, Fast Track Court, Hamirpur dated 16.10.2009. According to him, no partition has taken place inter se the parties. According to the revenue entries, suit land was joint between the parties.

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

9. PW-1 Kuldip Singh has deposed that in suit land measuring 70 Kanal 19 Marla, Kailash Devi was also owner of the same. Kailash Devi has raised construction over the suit land. He reported the matter to the Gram Panchayat. Defendants did not stop the construction. He denied that any private partition had taken place.

10. PW-2 Anil Jaswal has proved report Ext. PW-2/A He was sent as a local commissioner. He has recorded statement of Patwari vide Ext. PW-3/D. In his cross-examination, he deposed that he has told the defendants orally about his visit to the spot.

11. PW-3 Rakesh Kumar has proved report Ext. PW-3/A.

12. PW-4 Jugal Kishore deposed that he was Pradhan from 1991 to 2001. He visited the spot.

13. DW-1 Pritam Chand deposed that he was owner of the suit property. Kailash Devi is his mother. He was holding General Power of Attorney of Kailash Devi. He proved photocopy of General Power of Attorney Ext. DW-1/A. Disputed land is measuring 70-72 Kanal. Consolidation took place in 1980-82. Private partition has taken place. House has been constructed over Khasra No. 64. It measures 11 Kanal. House was constructed by him in 1995-96. He also admitted that he was restrained from raising construction. He also admitted that