Mukesh vs Hira Lal etc.

Jaswant Singh, J.—LRs of the plaintiff-Chandgi are in second appeal against the concurrent findings recorded by both the courts below whereby his suit for injunction seeking to restrain the defendants from raising any construction more than their share in the joint khewat bearing Khasra No. 369 measuring 2 kanal and 18 marlas, has been dismissed vide judgment and decree dated 27.2.2010 passed by the learned Civil Judge (Jr. Division), Rewari and the findings thereof have been affirmed by the learned Addl. District Judge, Rewari vide judgment and decree dated 30.10.2012. Learned counsel for the appellant has argued that the raising of the construction by the defendants would amount to ouster of the plaintiffs and therefore, both the courts below ought to have decreed the suit.

After hearing learned counsel for the appellant and giving my anxious thought, I find no ground to interfere in the concurrent findings recorded by both the courts below.

It is not in dispute that both the courts below have found on the basis of evidence adduced on record that the suit land though shown to be joint, however, the plaintiff is not in possession of any portion of the joint Khewat. To return such a finding, courts below have relied on the evidence of PW1, PW2 and PW3. The findings recorded by the learned First Appellate Court in para 15 of its judgment reads as under:

PW1 Chhote Lal has stated that the suit property has not been partitioned by metes and bounds and khata is joint but the property in question was partitioned in family settlement since the time of consolidation and all the co-sharers are cultivating separately except this plot and foundation of half portion of the plot has been constructed whereas remaining half is lying vacant. Bimla Devi (PW2) stated that parties to the suit are residing separately and they are cultivating the land separately and the defendants have their boundary wall on the plot in question and Kasni (green fodder) has been sown by the defendants. She has stated that Chandgi Ram and Chhote Lal are not in possession of the suit property. Rajender (PW3) has also admitted that the parties to the suit are residing separately and they are having their separate ration card. He has stated that he is not in possession of the suit property whereas the defendants have constructed boundary wall of the height of 3 feet and Ram Singh etc have sown crop of kasni in the same. Thus, from the evidence of the plaintiff himself, it is established that plaintiff Chandgi Ram is not in possession of the suit property. He was required to prove that the value and utility of the property is diminished by raising construction over the suit property by the defendants and that construction is detrimental to the interest of other co-owner but he has not produced any cogent and convincing evidence to prove the same. In Bachan Singh''s case (supra) it has been held that mere by making of construction or improvement in common property does not amount to ouster. In Pahalwan Chand''s case (supra) it has been held by our Hon''ble High Court that a co-owner cannot seek injunction against another co-owner and remedy for plaintiff is to file a suit for partition. In these circumstances, learned Civil Judge (Jr. Division), Rewari has rightly held that the plaintiff is not entitled to any relief of injunction.

In view of the aforesaid findings that the plaintiff is not in possession of any portion of joint khewat, I find that the courts below have rightly held that the plaintiff could not injunct the co-sharers, who are in possession of portion of the suit property from raising such a construction or improvement in common property, which does not amount to ouster.

In view of the above, I find that no law point arises for determination much less any substantial question of law. Dismissed.