In second appeals under CPC Section 100, no interference with concurrent findings of fact unless substantial question of law or perversity; co-sharers may develop joint property if partition not impossible.

JUDGMENT :

Romesh Verma, J.

The present appeal arises out of judgment and decree dated 30.07.2024 as passed by learned Additional District Judge, Palampur, District Kangra, H.P., whereby the appeal preferred by the present appellant has been ordered to be dismissed and the judgment and decree as passed by learned Senior Civil Judge, Palampur, District Kangra, H.P. dated 27.09.2022 has been affirmed.

2. The facts, which arises in the present case, are that the plaintiff/appellant preferred suit for permanent prohibitory injunction and in the alternative for mandatory injunction against the defendants/respondents. It was averred in the plaint that one of the co-sharers, namely, Kashmir Singh has died and defendant No.1 along with other co-sharers has succeeded to his estate, however, till date the necessary mutation has not been attested in their names. It was averred in the plaint that the plaintiff, defendants along with other sharers are co-owners in joint possession of the suit property comprised in Khata No.12, Khatauni No.34, Khasra No.188, measuring 04-37-38 hects, situated in Mohal Gharana Khas, Hadbast No.141, Patwar Circle Charana, Tehsil Dehra, District Kangra, H.P. It was further alleged that on 31.12.2017, the defendants/respondents with malafide intention to occupy the best and valuable portion of the suit land, abutting to the road without effecting the partition of the suit land, deployed JCB machine and started levelling the best and valuable portion of the suit land with an intention to raise construction and to oust the plaintiff. Therefore, under such circumstances, the decree for injunction and in alternative relief for mandatory injunction was sought from the learned trial Court.

3. The defendants contested the suit filed by the plaintiff on various grounds such as maintainability, cause of action, estoppel, suit bad for non-joinder of necessary parties etc. On merits, it was stated that the suit land is no more joint amongst the parties as on 02.03.2004, the suit land has been partitioned in a family partition and consequent to that the plaintiff has occupied his share over the suit land and the defendants are in separate possession of their respective shares in the suit land. It was submitted that defendant No.1, after retirement from the Army in the month of 2017, deployed JCB machine and got levelled his respective share in the land and prepared the land for construction. Further the defendants have spent more than Rs.5.00 lacs for levelling of land. Therefore, they prayed for dismissal of the suit.

4. The learned trial Court vide its order dated 16.07.2019, framed the following issues:

“1. Whether plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for? OPP.
2. Whether the plaintiff in the alternative is entitled for relief of mandatory injunction by demolition of structure if in case the defendants succeed in raising construction over the suit land during pendency of the suit, as prayed for ?OPP
3. Whether the suit is not maintainable, as alleged ? OPD.
4. Whether plaintiff has no cause of action to file the present suit, as alleged ? OPD.
5. Whether plaintiff is estopped from filing the present suit by his act and conduct, as alleged? OPD.
6. Whether the suit is bad for non-joinder and mis-joinder of necessary parties, as alleged? OPD
7. Whether the plaintiff has not approached the court with clean hand and has suppressed the material facts as alleged? OPD
8. Relief.”

5. The trial Court