The jointness of the suit property, unity of title and community of possession are essential principles in determining the rights of co-owners and the nature of the suit land.

JUDGMENT

Sureshwar Thakur, J. - The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiffs'' suit for rendition, of, a decree for permanent prohibitory injunction qua the suit khasra number(s), was, hence decreed.

2. Briefly stated the facts of the case are that a suit for permanent prohibitory injunction was filed by the plaintiffs against the defendants on the allegations that they are owners of the suit land comprised in Khasra No. 43, 53, 64, 70, 83, 87/3, 100, 104 and 209, measuring 16.13 bighas, situated in Village Dali, Pargana and Tehsil Sadar, District Bilaspur, H.P., along with their brother Hukam Singh (defendant No.1), who has been born to his father from another mother. As far as, defendants No.2 and 3 are concerned, they have got no right, title or interest in the suit land. In fact, after the death of their father, mutation with regard to his property bearing No. 211 was attested, in their names along with defendant No.1, as well as, other legal heirs, on 16.10.2003. The defendants, who are forceful persons have started giving open threats to cut the valuable trees from the suit land, besides changing its nature by raising construction. Although, they were not allowed to raise construction thereon, but they managed to cut few trees, numbering 10 from the suit land, of various species. As far as the timber of those trees is concerned, the plaintiffs did not allow them to remove the same. The cause of action accrued on 1.12.2003, when the defendants cut the trees from the suit land and did not accede to the request of the plaintiffs. Hence the suit.

3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections, inter alia, maintainability, cause of action, estoppel etc. On merits, although, it was admitted that Shri Prabhu R|am has died, but it was pleaded that during his life time, he had executed a Will, on 9.12.1994, in favour of defendants No.2 and 3 which he could not register with the office of Sub-Registrar, Sadar, due to his ailment. However, the same had been produced before Sub Registrar, Sadar on 3.10.2003, under Section 40 and 41 of the Indian Registration Act, which is pending for decision/finalization. Despite that, A.C. Sadar, without caring for the pendency of the aforesaid application and taking cognizance of the Will, in a haste manner, attested the mutation in the names of plaintiffs and replying defendant No.1, in an illegal manner. Finding no other alternate, they filed an appeal against the above said illegal mutation in the Court of learned Sub Divisional Collector, Sadar and the operation of mutation was stayed. Unless and until, that appeal is decided, on the basis of Will, in question, defendants have got every right, title or interest in the suit land. Other allegations were denied.

4. The plaintiffs filed replication to the written statement of the defendant(s), wherein, they denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint.

5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-

1. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed for?OPP.

2. Whether the suit in present form is not maintainable?OPD.

3. Whether the plaint does not disclose any cause of action and deserves to be dismissed U/O 7, Rule 11 CPC? OPD.

4. Whether the plaintiffs are estopped by their act, conduct and acquiescence as alleged?OPD.

5. Whether Shri Prabhu Ram has executed any valid will on 9.12.2994 in favour of defendants No.1 and 2, as alleged?OPP.

6. Relief.

6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/respondents herein. In an appeal, preferred therefrom, by, the defendants/appellants herein, before the learned First Appellate Cour