2025:HHC:15139 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.190/2024 Date of Decision: 21st May, 2025. Thakar Dass .....Appellant Versus Chatter Dass …..Respondent. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant: Mr. Sunil Mohan Goel, Sr. Advocate with Mr. Raman Jamalta, Advocate. For the Respondent: Mr. Sudhir Bhatnagar, Advocate. Bipin Chander Negi, Judge (oral). The appellant, by filing this appeal under Section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 29.05.2024 passed by the Learned Additional District Judge, Kullu, District Kullu, H.P. in Civil Appeal No. 38/2023 affirming the judgment and decree dated 31.10.2023 passed by the Learned Senior Civil Judge, Lahaul and Spiti at Kullu, District Kullu, H.P. in Civil Suit No. 228 of 2017. 2. The plaintiff, along with others including the defendants alleges to be a co-owner in possession of the suit land. The suit land is stated to be joint, and no partition has been effected between the parties. The plaintiff contends that unless and until a partition is effected, no co-sharer has the right to change the nature of the suit land or raise construction on the valuable 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 2025:HHC:15139 portion or in excess of their shares. The plaintiff has filed an application for partition, which is pending adjudication. It is alleged that the defendants, in an attempt to defeat the plaintiff's rights, have begun collecting construction material and threatening to raise construction on the best and most valuable portion of the suit land, thereby altering its nature. The plaintiff asserts that the defendants have no right, title, or interest to construct over the suit land, particularly in the most valuable part and in excess of their share, without a prior partition. 3. Based on the pleadings, the learned trial Court framed the following issues on 26.08.2021: 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP 2. Whether, in the alternative, the plaintiff is also entitled for relief of mandatory injunction, as prayed for? OPP 3. Whether the plaintiff has no cause of action to maintain the suit against the defendants? OPD 4. Relief. 4. To prove his case, the plaintiff examined himself. After hearing the parties, the learned trial Court dismissed the suit, relying upon Ashok Kapoor v. Murthu Devi (2016) 1 SLC 2007 and Pyare Chand v. Sandhya Devi (2017) 2 SLC 1040. The Court held that a co-sharer cannot restrain another co-sharer from raising construction unless it causes prejudice to him. The plaintiff failed to prove that the defendant was 3 2025:HHC:15139 constructing in excess of their share or in a manner detrimental to his rights. 5. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed an appeal. The grounds of appeal challenge the impugned judgment as being contrary to law and facts, contending that the findings are based on surmises and conjectures. It is asserted that the trial Court ignored the plaintiff's evidence and the pending partition proceedings between the parties. The plaintiff further alleges that the trial Court erroneously decided issues No. 1 to 6. The plaintiff had also filed an application for additional evidence under Order 41 Rule 27 CPC with the averment that despite exercising due diligence the plaintiff could not prove the gift deed executed by his father in his favour and copy of misal haquit 2000-01. 6. The present second appeal has been filed after the dismissal of the first appeal, seeking a re-examination of the matter. 7. Perused the impugned judgement and heard counsel for the Parties. 8. In cross-examination the plaintiff/appellant admits that the suit land has been partitioned and co-sharers have been given land as per their respective possession. Partition proceedings have not been assailed by way of an appeal. No evidence has been led by the plaintiff/appellant to show that the land over which construction is being raised by the 4 2025:HHC:15139 respondent/defendant is the best and most valuable portion. Moreover, plaintiff/appellant has neither pleaded nor proved injury on account of the construction sought to be raised by the respondent/defendant. Besides the aforesaid, the plaintiff/appellant has himself raised construction being a co- sharer and now he is seeking to restrain the other co-sharers i.e. respondent/defendant from raising construction, which is completely impermissible, as the same is highly inequitable. 9. In the aforesaid facts and attending circumstances, there arises no question of law, much-less a substantial question of law for consideration of the Court, therefore, the present appeal is dismissed being devoid of merit. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 21st May, 2025 (T.B/Gaurav Rawat)