Concurrent findings of fact in a second appeal under Section 100 of the CPC cannot be interfered with unless found to be perverse; further, a co-owner cannot be restrained from raising construction on joint property absent proof of ouster or material diminution of the property's value.

Romesh Verma, Judge(oral)

The present appeal arises out of the judgment and decree, dated 02.09.2023, passed by the learned Additional District Judge-I, Mandi, District Mandi, Himachal Pradesh, whereby the appeal filed by the present appellant has been dismissed and the judgment and decree passed by the learned Civil Judge, Court No. 2, Mandi, District Mandi, H.P., dated 31.08.2021 has been affirmed, whereby the suit filed by the plaintiff/appellant was ordered to be dismissed.

Brief facts giving rise to the present appeal are that one Kumari Kusum filed a suit for permanent prohibitory and mandatory injunction against the defendants before the learned Trial Court. It was averred in the plaint that the suit land, comprised in Khasra Nos. 805, 806, 814, 816, 808, 809, 819, 802, 803, 804, 807, 871 and 872, Khata Khatoni Nos. 232/318 and 233/319 to 322, measuring 682.45 square metres, situated in Mohal Mangwai, Tehsil Sadar, District Mandi, H.P., was jointly owned and possessed by the parties and other co-sharers.

It was further averred that the defendants, without any legal right and without the consent of the plaintiff, were bent upon changing the nature of the suit land and threatened to cause irreparable loss and injury to the plaintiff by usurping valuable portion thereof. Despite repeated requests made by the plaintiff to desist from their illegal acts and not to interfere with the suit land by raising construction thereupon, the defendants failed to accede to such requests. Consequently, the plaintiff sought a decree of permanent prohibitory injunction restraining the defendants, their agents, servants, assignees, etc., from causing any interference with the suit property or any part thereof in any manner. It was further prayed that a decree for mandatory injunction be passed in favour of the plaintiff and against the defendants.

During the pendency of the suit, Kusum Kumari died, present appellant was substituted as her legal heir on the basis of a Will.

The suit was contested by the defendants by filing a written statement and raising various preliminary objections therein. It was submitted that the plaintiff had neither any right, title, or interest in the suit land, nor was he in possession of even an inch thereof. It was further submitted that the revenue entries were wrong and incorrect and, therefore, not binding upon the rights of the defendants. All the averments made in the plaint were refuted and denied, and the defendants prayed for dismissal of the suit.

The plaintiff filed a replication to the written statement and reiterated the averments made in the plaint. It was averred in the replication that the plaintiff had purchased share in the joint property from one of the co-sharers through a registered sale deed dated 12.04.1978. It was further averred that a suit for joint possession filed by the plaintiff on 08.06.1978 was decreed on 03.10.1984, and the appeal preferred by the defendants against the said decree was also dismissed. It was further averred that the plea raised by the defendants, as well as other co-sharers, claiming right and title by way of adverse possession, had already been rejected by the Courts.

The learned Trial Court framed the following issues on 06.11.2013:

1. Whether defendants are raising construction over the suit land, as prayed ? OPP

2. Whether plaintiff is entitled to decree for permanent prohibitory injunction, as prayed for ? OPP

3. Whether plaintiff is not in possession of the suit land, as alleged ? OPD

4. Relief.

The learned trial Court directed the parties to lead evidence in support of their contentions. After appreciating the oral as well as documentary evidence adduced by the parties, the learned trial Court vide its judgment and decree dated 31.08.2021 dismissed the suit as filed by the plaintiff.

Feeling aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff/appellant preferred an appeal before the learned Additional District Judge-I, Mand