JUDGMENT :

Sandeep Sharma, J.

Being aggrieved and dis-satisfied with judgment dated 26.12.2019, passed by the learned Additional District Judge, Sundernagar, District Mandi in CMA No. 36/2019, whereby order dated 25.11.2019, passed by the learned Civil Judge, Court No.2, Sundernagar, District Mandi, H.P. in CMA No. 474 of 2019 in CS No. 207 of 2019 came to be set aside, petitioners-plaintiffs (in short the "plaintiffs") have approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to set-aside aforesaid impugned order.

2. Precisely, the facts of the case as emerge from the record are that the plaintiffs filed civil suit for permanent prohibitory injunction against the respondent-defendant (herein after referred to as "the defendant") stating therein that land comprising khewat No. 6, Khatauni No.6, Khasra Nos. 83, 607, 1322, 1324, 1325, 2092/860, 2092, 294, kitas 7, total land measuring 19-08-15 bigha and khweat No.6, Khatuni No. 7, Khasrsa Nos. 1320 and 1321 kitas 2, land measuring 00-04-10 bighas situate in Muhal Jarol/94 Tehsil Sundernagar, District Mandi, H.P. (in short "the suit land") is jointly recorded in the ownership and possession of the plaintiffs and other co-owners. Plaintiffs further submitted before the court below that since the suit land is joint and not partitioned between the parties coupled with the fact that some portion of the suit land is adjoining to the National Highway, defendant without getting the suit land partitioned could not have raised construction without the consent and permission of the plaintiffs. Being aggrieved and threatened with the alleged forcible construction being raised by the defendant on the suit land, plaintiffs besides filing aforesaid suit also filed an application under Order 39 Rule 1 & 2 CPC, praying therein for interim relief.

3. Defendant resisted the aforesaid claim by way of filing written statement as well as reply to the application, stating therein that plaintiffs have not approached the court with clean hands and have suppressed the material facts. Defendant also claimed that suit land has been privately partitioned inter-se all the co-sharers by way of family arrangement and at present, every co-sharer has been allotted separate share and they all are in exclusive possession of the separate portion of the land. Defendant further stated in the written statement as well as reply to the application that he is not trying to cover any area, rather due to enlargement of family and out of necessity, he has been raising construction on the dismantled old structure of toilet and flour mill, which is about 50 feet away from the road frontage over khasra No. 1322. Defendant also claimed before the court below that all the co-sharers have constructed their houses over khasra No. 1322, but such fact has not been disclosed by the plaintiffs. Defendant further claimed that plaintiffs have not disclosed the factum of their having possession over the vacant land on the road front to the extent of more than 500 feet. Defendant with a view to substantiate his aforesaid plea also placed reliance upon the report of Patwari and Kanungo, who in their report categorically stated that the suit land comprising khasra No. 1322 is owned and possessed by all the co-sharers including plaintiffs.

4. Learned trial Court vide order dated 25.11.2019, allowed the application filed by the plaintiff under Order 39 Rule 1 & 2 CPC and restrained the defendant from raising any construction on the suit land till the final disposal of the main suit.

5. Being aggrieved and dissatisfied with the aforesaid order passed by the learned trial Court, defendant preferred an appeal under Order 43 Rule (1) R CPC before the learned Additional District Judge, Sundernagar, District Mandi, H.P., who vide order dated 26.12.2019, accepted the appeal, as a consequence of which, order of restraint issued by the Trial Court came to be set-aside. In this background, pl