The central legal point established in the judgment is the principle of joint ownership and possession of property, and the restrictions on exclusive use of the property by co-owners until partition.

JUDGMENT

Sureshwar Thakur, J. - The instant appeal stands directed, against, the verdict pronounced, by, the learned First Appellate Court, whereunder, it, after partly allowing the defendant''s appeal, as reared therebefore, rather hence affirmed, the decree, rendered, by the learned Civil Judge (Junior Division), Sarkaghat, District Mandi, visavis, the decree of permanent prohibitory injunction, whereas it reversed, the relief of mandatory injunction, recorded, visavis, the suit property, by the learned trial Judge. The aggrieved therefrom, has, hence preferred the instant appeal, before this Court.

2. Briefly stated the facts of the case are that the parties to the suit along with other cosharers were joint owners in possession of land comprising khewat No. 145, khatauni No. 241, khasra No. 2188, 2194 and measuring 0 0689 hectares, situated in village Jamsai/226, Tehsil Sarkaghat, District Mandi. The defendant had purchased 9/135 share of Smt. Satya Devi of the suit land and thus he had become joint owner of the same along with the plaintiff and other cosharers. On 12.6.1999, the defendant constructed a Dhara towards front side of khasra No. 2195/1 with a motive to occupy the best and valuable portion of the suit land. Despite fact that partition case was pending before the Assistant Collector 1st Grade, Sarkaghat. The plaintiff prayed for a decree of permanent prohibitory injunction for restraining the defendant from raising construction over the suit land till partition and for mandatory injunction directing the defendant to demolish the Dhara constructed by him.

3. The defendant contested the suit. He filed written statement, wherein he alleged that the joint land was partitioned among the cosharers in a private partition, all the cosharers had been coming in separate possession of their respective share since the time of private partition. The defendant had purchased share of Smt. Satya Devi and thus he become joint owner in possession of the suit land. The defendant had raised construction on a portion, which was in possession of Smt. Satya Devi. Thus, the construction was within his own share. The defendant also contested the suit on preliminary objection such as cause of action, nonjoinder of necessary parties and estoppel. In nut shell the defendant refuted the case of the plaintiff and he prayed for dismissal of the suit.

4. On the pleadings of the parties, the learned trial Court struck the following issues interse the parties at contest:

1. Whether the suit land is joint interse the parties? OPP.

2. Whether the defendant has raised construction over the part of suit land i.e. of plaintiff and other cosharers to the prejudice of plaintiff? OPP.

3. Whether the construction in the form of Dhara raised in khasra No. 1995/1 and 2195/1 is liable to be demolished? OPP.

4. Whether there is no cause of action for the plaintiff to file the present suit? OPD.

5. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD.

6. Whether the suit is bad for nonjoinder of necessary party? OPD.

7. If issue No.1 is not proved whether suit has already been privately partitioned? OPD.

8. Relief.

5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, hence decreed the plaintiff''''s suit. In an appeal, preferred therefrom, by the defendant, before the learned First Appellate Court, the latter Court partly allowed the appeal, and, partly affirmed the findings recorded by the learned trial Court.

6. Now the plaintiff has instituted the instant Regular Second Appeal before this Court, wherein, she, assails the findings recorded, in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 7.9.2007, this Court, admitted the appeal, on, the hereinafter extracted substantial questions, of, law:

i) Whether the learned lower appellate Court being last court of facts is right in not discussing the entire oral as well as d