High Court in second appeal under CPC Section 100 cannot disturb concurrent findings of fact unless perverse or involving substantial question of law; co-sharer construction on joint land not ouster without proof of prejudice.

JUDGMENT :

ROMESH VERMA, J.

This Regular Second Appeal arises out of the judgment and decree as passed by the learned District Judge, Mandi, District Mandi, dated 05.03.2025 , whereby the appeal preferred by the appellant has been dismissed and the judgment and decree as passed by the learned Civil Judge, court No.3, Mandi, District Mandi,, dated 08.08.2024 whereby the suit filed by plaintiff was ordered to be dismissed, has been affirmed.

2. Brief facts of the case are that the plaintiff/appellant filed a suit for Permanent Prohibitory Injunction and Mandatory Injunction under Sections 34 to 38 of Specific Relief Act in the Court of learned Civil Judge, Court No.3, Mandi on 24.08.2020. It was stated in the plaint that the suit land situated in Mohal Kummi, Tehsil & District Mandi is recorded in the joint ownership and possession of the plaintiff, defendant No.1 and other co-sharers. It was further averred that the suit land is situated adjacent to Nalsar road and it is very valuable land. Since the suit land is joint between the parties and it is unpartitioned, therefore, each and every co sharer has got right and title to use this property and no co-sharer can be permitted to raise the construction to the detriment of the other co-sharer until and unless the same is partitioned by metes and bounds in the plaint.

3. In the plaint it was further averred that the defendants without the consent of the plaintiff and after taking undue advantage of the absence of the plaintiff, who is residing in Shimla and Chandigarh, have started digging pits and raised the construction of new house w.e.f 21.08.2020. It was submitted that the said construction being raised by the defendants is illegal and malafide and without the prior consent of the other co-sharer especially the plaintiff. It was averred that in case the defendants are not restrained from raising construction over the suit land, in that event he shall suffer huge and an irreparable loss and further prayer was made for demolition of the construction, if any raised during the pendency of the suit by passing a decree of mandatory injunction. Therefore, the suit was filed by the plaintiff for the grant of Permanent Prohibitory Injunction and Mandatory injunction on the ground that the defendants are causing unlawful interference over the suit property and are encroaching upon best and valuable portion of suit land. Therefore, decree for permanent injunction and decree for Mandatory injunction by demolition of the structure was sought from the learned trial Court.

4. The suit was contested by the defendants by taking various grounds such as maintainability, estoppel, cause of action, non-joinder and mis-joinder etc. On merits, it was stated that the replying defendants have already raised the construction in 2009 on the share of his aunt which was purchased by him. The allegation of construction was specifically denied and it was submitted that they are carrying out only repairs. It was averred in the written statement that the plaintiff has got no cause of action and by concealment of the facts and in order to pressurize the defendants the present suit has been filed.

5. The plaintiff filed replication to the written statement and reiterated the contents of the plaint.

6. Learned trial Court on 10.06.2022 framed the following issues:

1. Whether the Plaintiff is entitled for the relief of permanent prohibitory injunction to restrain defendant from causing unlawfu