IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on 29th January, 2025 Pronounced on 29^th of April, 2025 RSA No.575 of 1998 Yudhister now deceased through his LRs and another ....Appellants Versus Jai Dev son of Gopi Chand (since deceased) through LRs and others .....Respondents CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN Present : Mr. M.L. Sarin, Senior Advocate with Mr. Ritesh Aggarwal, Advocate for the appellants Mr. Shailender Jain, Senior Advocate with Ms. Richa Sharma, Advocate for respondent No.1.

PANKAJ JAIN, J.

LRs of the defendants are in appeal.

2. For convenience, the parties hereinafter are referred to by their original position in the suit i.e. the appellants as contesting defendants No.1 & 2 (represented herein through their LRs), respondent No.1 as plaintiff and respondents No.2 to 17 as defendants No.3 to 16.

3. Plaintiff filed suit for permanent injunction. Further seeking decree of mandatory injunction directing defendants No.1 and 2 to demolish construction raised by them shown by letters A, B, C, D, E & F in red colour in site plan Exhibit P-1 and to restore the disputed property to its original position.

4. As per the pleaded case of the plaintiff, forefathers of both the parties namely Harna Mal and Sham Lal were co-sharers to the extent of equal shares in the residential property i.e. haveli as shown in site plan (Exhibit P-1). Grandfather of defendant No.1 filed suit for partition. Civil Suit No.81 of 1896 culminated in a compromise between the parties. Both the parties, partitioned the haveli. Portion marked by letters A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R & S was left as common. The same was to be used by both the parties for enjoying their respective partitioned shares. On death of Harna Mal, his share was inherited by Mahabir Prashad. Share of Sham Lal was inherited by Mathra Dass. On death of Mathra Dass, plaintiff Gopi Chand along with proforma defendants No.3 to 10 came in possession of share of deceased Sham Lal, as owners. In the year 1962, father of defendant No.1 namely Mahabir Prashad filed suit for partition of common portion. The same was dismissed as withdrawn with permission to file a fresh suit on the same cause of action vide order 10.09.1963. Mahabir Prashad raised some construction against which plaintiff along with proforma defendants No.4 to 10 raised protest. Defendant Mahabir Prashad filed second suit for partition qua common portion i.e. Civil Suit No.429 of 1963. The suit filed by Mahabir Prashad was dismissed by the Civil Court holding that the common portion marked in site plan by letters A to S, is a common property and is impartible. The judgment passed by the Court of the First Instance was impugned in the appeal preferred by Mahabir Prashad. In appeal, Mahabir Parshad withdrew his suit vide order dated 31.07.1965 with permission to file a fresh suit on the same cause of action. After Mahabir Parshad died, his share was succeeded by defendants No.1 and 2 in equal shares. Plaintiff Gopi Ram in his old age settled in Delhi with his sons. Proforma defendants No.4 to 10 also settled outside Hisar. Defendants No.1 and 2 taking benefit of the absence of the plaintiff and the proforma defendants, raised construction marked as A, B, C, D, E & F in the common portion. Plaintiff claimed that the construction being illegal, deserves to be removed and the property needs to be restored to its original condition.

5. Suit was contested by defendants No.1 and 2. Defendants no.1 and 2 claimed that plaintiff and defendants No.4 to 10 are not the owners of property in dispute having already sold their share to one Gian Chand on 18.03.1934. Partition between Harna Mal and Sham Lal was admitted. However, the details of the partition as claimed by the plaintiff, were denied. Defendants claimed that the construction was very old and the same was raised in the year 1965. It was denied that the portion, on which the construction subject matter of the suit has been raised, is i