Point of Law: Scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of Constitution of India is examined and explained in a number of decisions of this Court.

ORDER :

By way of instant petition, order dated 25.07.2022, passed by learned Additional District Judge, Ghumarwin, District Bilaspur, H.P., in Civil Misc. Appeal No. 10-14 of 2021 has been assailed.

2. The Civil Misc. Appeal decided by learned Additional District Judge, Ghumarwin, had arisen from an order dated 06.04.2022, passed by learned Civil Judge, Court No.-3, Ghumarwin, in CMA No. 171-06/2022.

3. The parties hereto shall be referred by the same status as they held before the learned trial Court. Petitioner herein is the plaintiff and respondents herein are the defendants.

4. Plaintiff has filed a suit against the defendants seeking following reliefs:-

“i) Decree for permanent prohibitory injunction restraining the defendants from digging the land, raising any type of construction, cutting the trees, occupying the valuable and specific portion of the suit land, changing the nature of the land measuring 2-5 bighas, comprised in Khasra Numbers 5, number Khata/Khatoni 20 min/23 situated in Village Nagroun, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. in any manner either personally or through their family members, agents, servants, representatives and assignees, until the partition of the suit land by metes and bounds by the competent revenue authority amongst cosharers, be passed;

2. In the alternative, decree for joint possession by demolishing the construction if any raised or for the restoration of the land on its original position, if any constructed by defendant during pendency of the suit, over the suit land or any part of it exceeding the share forcibly, be passed.”

5. The suit has been filed by the plaintiff on the premises that suit land comprised in Khata Khatauni No. 21min/23, Khasra No.5, measuring 205 bighas, situated in Village Nagroun, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur, H.P., is jointly owned by the parties to the suit and other co-sharers. As per plaintiff, the suit land was joint and partition had not been effected. Plaintiff further alleged that defendants were threatening to raise construction forcibly on the suit land by dispossessing the plaintiff. The conduct of defendants in raising construction was objected on the ground that the same would adversely affect the rights of the plaintiff.

6. Along with the Civil Suit, Civil Misc. Application for interim injunction restraining the defendants from raising construction on the suit land, till the pendency of the suit, was also filed.

7. Defendants are contesting the suit of the plaintiff. It is submitted on behalf of the defendants that the parties have much more joint land than the land detailed as suit land by the plaintiff. The defendants have claimed much more share in the entire land than being utilized by them for the time being. Defendants have also raised plea of private partition between the parties. It has also been specifically averred that defendant No.1 had an old cowshed which was being reconstructed along with the reconstruction of old toilet and WC. A retaining wall was also sought to be raised only for the purposes of protection of already existing house of defendant No.1. It is also alleged that plaintiff has his double storeyed house on the joint land and he is also in possession of an old house inherited by him and defendants from their father. Plaintiff is stated to have reconstructed the first floor of the inherited house without any objection from defendants. As per defendants, total area in occupation of defendant No.1 for his house and cowshed, toilet etc., is not more than four biswas, whereas the defendants have much more share in the entire suit land.

8. Learned trial Court dismissed the application of plaintiff. An appeal under Order 43, Rule 1(r) of the Code of Civil Procedure, was preferred by plaintiff, which also stands dismissed vide impuged order passed by learned Additional District Judge, Ghumarwin, District Bilaspur, H.P.

9. I have heard Mr. Vijay Bhatia, learned counsel for the plaintiff and Mr. Hemant