Smt. Sheelwanti vs Balwant Singh and Others

Deepak Gupta, J.—This Regular Second Appeal is directed against the judgment and decree dated 20.12.1999 passed by the learned District Judge, Sirmaur District at Nahan in Civil Appeal No. 62-CA/13 of 1998 whereby he partially set-aside the judgment and decree dated 10.9.1998 passed by the learned Senior Sub Judge, Nahan.

Briefly stated, the facts of the case are that the Appellant (hereinafter referred to as the Plaintiff) filed a suit for permanent mandatory injunction against the Defendants praying that the Defendants be restrained from interfering in the land comprised in khasra Nos. 1510 and 1511 in Mohal Chhawani Shamsharpur at Nahan, District Sirmaur, H.P. A further prayer was made that a decree for mandatory injunction be passed directing the Defendants to remove the construction raised during the pendency of the suit.

The learned trial Court decreed the suit of the Plaintiff and it found that some construction had been raised on part of khasra No. 1510 and the Defendants were directed to remove the said construction from khasra No. 1510 measuring 0-00-09 hectares by demolishing the super structure built thereupon.

The Defendants filed an appeal and the learned lower Appellate Court confirmed the decree qua khasra No. 1511 but the decree qua khasra No. 1510 measuring 0-00-09 hectares was set aside and the prayer of the Plaintiffs for mandatory injunction by demolition of the super structure on this khasra number was rejected. The Plaintiff aggrieved by this portion of the judgment filed the present appeal.

During the course of these legal proceedings, one of the Defendants had purchased 1/48th share out of the suit land i.e. both khasra Nos. 1510 and 1511 from one of the co-owners. Therefore, he has also become a co-owner in the suit land. Admittedly, he is in possession of 0-00-09 hectares of land in khasra No. 1510 as found by both the Courts below. He having become co-owner, the only relief which the Plaintiff can now claim is the relief of partition by metes and bounds for which she has to file separate proceedings. The proceedings qua demolition of super structure have become infructuous because of the subsequent developments. The Plaintiff shall be at liberty to file a suit for partition which shall be decided in accordance with law.

The appeal is disposed of in the aforesaid terms. No costs.