The court affirmed that once land is partitioned, co-sharers become independent owners, allowing for injunctions against interference by other co-sharers.

JUDGMENT :

Vivek Singh Thakur, J.

This appeal has been preferred against judgment dated26.02.2018 passed in Civil Appeal No.27 of 2017, titled as Chandi Dass vs. Dame Chand & others, decided by District Judge, Chamba Division Chamba, H.P., whereby judgment and decree dated 07.10.2017 passed by Civil Judge, Chamba, District Chamba, H.P., in Civil Suit No.151 of 2010, titled as Chandi Dass vs. Dame Chand & others, has been partially modified by passing a decree in favour of the plaintiff restraining the defendants from interfering in the suit land in any manner.

2. Parties to the lis are being referred as per their status in the Civil Suit for convenience, i.e. as plaintiff and defendants.

3. There are total eight defendants, but only defendants No.1, 3, 7 and 8 had contested the Civil Suit. Whereas, defendants No.2, 4 to 6 were proceeded ex parte.

4. Plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from interfering, causing nuisance, damage or taking forcible and illegal possession of the suit land comprised in Khata Khatauni Nos. 47/79, Khasra Nos. 116, 117/1, 120/1, 140/1, 219/1 kitta 5, measuring 09-14-00 bighas situated at Mauza Purthi Pargna Sach, Tehsil Pangi, District Chamba, H.P. The suit was dismissed by the Trial Court.

5. The appeal preferred by the plaintiff was partly decreed as referred supra.

6. Vide order dated 03.10.2019 appeal was admitted on following substantial questions of law:-

“1. Whether the suit filed by the plaintiff for injunction and possession is maintainable, when the plaintiff is not in the possession of the suit land?

2. Whether the lower appellate court has wrongly interpreted the statements of witness PW-1, DW-1 and 2 in its wrong perspective and the same has caused injustice to the appellants?

3. Whether the entries in the Jamabandi are conclusive proof of ownership, without the possession?

4. Whether the injunction can be granted against the co-sharers, when there is dispute qua the possession of the land allotted in the partition?

5. Whether the judgment and decree passed by the learned lower appellate court is sustainable in the eyes of law when the same has been passed without the service of the appellants?

7. Learned counsel for the appellants has submitted that appellants were never served before the District Judge in appeal preferred by plaintiff and, therefore, impugned judgment passed by the District Judge is not sustainable.

8. To substantiate the aforesaid plea, learned counsel for the appellants has referred report of the Process Server recorded on the summons issued to the defendants through Mr.Rajiv Dharmani, Advocate, who was representing the contesting defendants in the Trial Court, wherein it has been reported that Mr.Rajiv Dharmani, Advocate, had refused to receive the summons by making a statement that he was not counsel in the appeal. The report was made on 01.01.2018 on the summons issued for 03.01.2018. He further submits that no summons were served upon the defendants, and the Advocate representing them was not authorized by them to contest the appeal. Therefore, there was no proper service and representation of the contesting defendants before the District Judge and, thus, impugned judgment and decree deserve to be set aside and the matter deserves to be remanded back to the District Judge for adjudication afresh.

9. Statement made by learned counsel for the appellants on 01.01.2018, with respect to refusing to receive the summons on the ground that he was not Advocate in the appeal, is on record of District Judge (Appellate Court). However, it is also noticeable that on 03.01.2018 firstly it was recorded by the District Judge that notices issued to the defendants, through their counsel appeared before the Trial Court, were received back unserved, but thereafter in the said order it has also been recorded that at that stage, Mr.Rajiv Dharmani, Advocate, appeared and sought time to seek instructions from his clients/defendants and, therefore, matt