JUDGMENT :

JYOTSNA REWAL DUA, J.

1. Civil suit for permanent injunction filed by respondent No. 1 was dismissed by the learned trial Court on 29.03.2008. Learned First Appellate Court vide judgment and decree dated 16.05.2009 allowed the appeal filed by the plaintiff and decreed the suit. Assailing the judgment and decree passed by the learned First Appellate Court, the instant appeal has been preferred by the defendant.

2. Parties hereinafter are referred to as they were before the learned trial Court.

2(i). Suit was filed by the plaintiff (respondent No. 1 herein) praying for decree of permanent injunction to restrain the defendants from changing the nature and raising construction over the suit land comprised in Khewat No. 8 min, Khatauni Nos. 14 min, 15 min, Khasra Nos. 1955, 1952, 1953 as per jamabandi for the year 1999-2000 situated in village Mohal Kotla Kalan, Tehsil and District Una, H.P. till final partition. In the alternative a decree for mandatory injunction by way of demolition of superstructure if any raised forcibly by the defendants during the pendency of the suit was also prayed for.

2(ii). It was pleaded in the plaint that the suit land was jointly owned and possessed by the plaintiff, defendant No. 1 and Smt. Sureshtha Devi wife of Jasbir Singh. The original defendants were father and son. They were forcibly raising construction over the suit land by covering the best and valuable piece of suit land without there being regular partition of the land.

2(iii). In their written statement, the defendants admitted that the suit land bearing Khasra No. 1952, 1953 and 1955 measuring 0-13-90 hectares was jointly owned by the plaintiff, defendant No. 1 and Smt. Sureshtha Devi. The defence put-forth was that defendant No. 1 Santokh Singh and Hoshiar Singh (father of the plaintiff) were real brothers and co-owned the suit land to the extent of half share each. Sh. Hoshiar Singh raised construction over Khasra No. 1952 with the consent of the defendant. Sh. Hoshiar Singh was in exclusive possession of Khasra Nos. 1952 and 1953. During his life time, Sh. Hoshiar Singh executed a registered Will dated 31.01.2002, whereunder the house raised by him over Khasra No. 1952 was given to his daughter-in-law Smt. Sureshtha Devi and remaining part of Khasra No. 1952 and Khasra No. 1953 were bequeathed in favour of plaintiff and Smt. Sureshtha Devi in equal shares. This Will was accepted by the legal heirs of Sh. Hoshiar Singh including the plaintiff and Smt. Sureshtha Devi. Mutation No. 691 was sanctioned to this effect.

Khasra No. 1955 was in exclusive possession of deceased defendant No. 1 Sh. Santokh Singh (father of present appellant and respondents No. 2 and 3). Share of defendants over the suit land comes to 0-06-52 sq. mtrs, whereas defendants intended to raise construction only over 0-00-84 sq. mtrs of land comprised in Khasra No. 1955 as per site plan attached with the written statement. Thus it was pleaded that co-owners were in separate possession over the suit land according to their mutual adjustment, which arrangement had been accepted by all of them. Father of the plaintiff was in possession of Khasra Nos. 1952 and 1953. He had already raised construction over parts of Khasra No. 1952. Defendants were also entitled to raise construction over parts of the Khasra No. 1955, which was in their exclusive possession.

2(iv). Parties led evidence in support of their respective contentions. After appreciating the pleadings, evidence and the contentions advanced by the parties, learned trial Court dismissed the civil suit on 29.03.2008 holding that the suit land was though in joint ownership of the parties but the possession thereof had been separated on the spot by way of mutual agreement. It was further held that plaintiff was not entitled to the relief of injunction as he had concealed material facts from the Court that his father Hoshiar Singh was in separate possession of Khasra Nos. 1952 and 1953, and had already raised constru