ORDER :

SATYEN VAIDYA, J.

1. By way of instant petition, petitioner has assailed order dated 26.7.2019 passed by learned District Judge, Una, in Civil Misc. Appeal No.27 of 2019, arising out of order dated 01.10.2018, passed by learned Senior Civil Judge, Court No.1, Una, in CMA No. 247/18/16.

2. Petitioners herein are defendants/non-applicants and respondent herein is plaintiff/applicant before the learned Trial Court. The parties hereinafter shall be referred by the status, they hold before the learned Trial Court.

3. Plaintiff/applicant has filed a suit for permanent prohibitory injunction restraining the defendants/non-applicants from changing the existing nature and character of land measuring 580-75 Sq. decimetres comprised of Khewat No.93, Khatauni No. 278, Khasra Nos. 3340/2189, 3341/2189 and 3343/2189, situate at Up Mohal Gaula (Una), Tehsil and District Una, HP, (hereinafter to be referred as the suit land), by raising any sort of construction or otherwise taking exclusive possession by ousting the plaintiff/applicant forcibly and also cutting and removing of trees till the regular and final partition. In alternative, a prayer has been made for grant of mandatory injunction directing the defendants/respondents to remove the “malba” of any super structure raised exclusively and forcibly during the pendency of the suit.

4. According to plaintiff/applicant, the suit land is jointly owned by plaintiff with defendants No.1 and 2 and other co-owners. The partition of the suit land has not been effected by metes and bounds. He filed the suit on being threatened by defendants/non-applicants to raise construction and to take exclusive possession of suit land by ousting the plaintiff forcibly.

5. Defendants have not denied the status of the suit land to be joint. Their case is that though the suit land is recorded as joint in the revenue records but the plaintiff and defendants No.1 and 2 have separate portions of the suit land in their respective possession. They have made counter allegations that plaintiff under the garb of filing the suit, intends to encroach upon the share of the suit land. His earlier attempt in this regard was thwarted in April, 2016 with the intervention of police.

6. Plaintiff also preferred an application under Order 39 Rule 1 & 2 read with Section 151 of the Code of Civil Procedure along with the suit with the following prayer:-

It is, therefore, prayed that the temporary injunction restraining the respondents from changing the existing nature and character by raising any sort of construction or otherwise, taking exclusive possession by ousting the applicant forcibly, cutting and removing the trees from land measuring 580-75 Square decimeters comprised of Khewat No. 93, Khatauni No.278, bearing Khasra No.3340/2189, 3341/2189, 3343/2198 as entered in Jamabandi for the year 2010-11 situated in Up Mohal Galua (Una) Tehsil and District Una, H.P. till regular and final partition during the pendency of the case may kindly be granted in favour of the applicant and against the respondents.

7. Learned Trial Court after hearing the parties in the above noted application directed them to maintain status quo qua nature and possession of the suit land till the final disposal of the suit or legal partition thereof. It was clarified that the order would not come in the way of to their already raised structures but will apply to the vacant portion.

8. Aggrieved against order dated 01.10.2018, passed by learned Trial Court, petitioner filed an appeal under order 43 Rule 1 ( r) of the Code of Civil Procedure before the learned District Judge Una which also came to be dismissed vide order impugned in the present petition.

9. I have heard the learned counsel for the parties and have also gone through the records made available on the file of the case.

10. Order 39 Rule 1 of the Code Civil Procedure read as under: -

Case in which temporary injunction may be granted-[***] Where in any Suit it is proved by affidavit or otherwise-

(a) t