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2001 DIGILAW 230 (HP)

KAUSHALYA DEVI v. KALASO DEVI

2001-09-10

M.R.VERMA

body2001
JUDGMENT M.R. Verma, Judge:-The appellants/plaintiffs (hereafter referred to as the plaintiffs) have preferred the present appeal against the judgment and decree dated 22-12-1993 passed by the learned District Judge, Hamirpur whereby their appeal against the judgment and decree dated 1-9-1993 dismissing their suit has been dismissed and the judgment and decree of the trial court has been affirmed. 2. In brief, the case of the plaintiffs is that they are the owners in possession of shops built on 5 Marlas of land, a portion of land comprising Khata Khatauni Nos. 53/58 and 59, Khasra No. 80 min and 80 min measuring 5 kanals and 5 Marlas, situate in Tika Chathiar, Mauza Balduhak, Tehsil Nadaun, District Hamirpur, H.P. It is averred that Ramesh Chand, predecessor-in-interest of the parties, purchased the said 5 Marlas of land construction of shops. The original purchaser, however, died on 5.2.1987 before completion of the foundation work of the shops. The construction work thereafter was done by the father of plaintiff No. 1 at his own expenses because the plaintiffs had no means to carry on the construction. After the death of Ramesh Chand, 1/3rd share of the aforesaid 5 Marlas of land was mutated in the name of respondent/defendant (hereafter referred to as the defendants) but she never came to possess any portion of the land nor spent any money on the construction of the shops in question. However, she started interfering with the possession of the plaintiffs over the shops in suit, therefore, the plaintiffs instituted a suit for declaration that they are the owners in possession of the shops in suit and also prayed for permanent prohibitory injunction restraining the defendant from interfering with the shops intuit in any manner or alienate the same in the name of third person. The defendant contested the suit and in the written statement took the preliminary objections that the suit was not maintainable, the plaintiffs had got no cause of action, the suit was bad for nonjoinder and misjoinder of necessary parties, the suit was not properly valued for the purposes of court fee and jurisdiction, the plaintiffs were estopped from filing the suit by their act and conduct, the plaintiffs had no locus standi to file the present suit, the suit was barred by time as also under Section 10 of the Code of Civil Procedure. On merits, the claim of the plaintiffs as made out in the plaint was denied and it was claimed that the shops in suit were constructed by deceased Ramesh Chand and after his death, being his mother, the defendant came in possession of the suit land as well as the shops in suit. It has been denied that the construction work of the shops was completed after the death of Ramesh Chand. The plaintiffs filed replication wherein the grounds of defence, as taken in the written statement, were denied. 3. On the pleadings of the parties, the learned trial Judge framed >he following issues : "1. Whether the plaintiffs are entitled for decree of declaration and permanent injunction as prayed for? OPP. 2. Whether the shops in dispute were constructed by the plaintiffs after the demise of late Shri Ramesh Chand exclusively, if so, to what effect? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiff has no locus-standi and cause of action to file the suit? OPD. 5. Whether the suit is bad for nonjoinder and misjoinder of parties? OPD. 6. Whether the plaintiffs are estopped by their act and conduct from filing the suit? OPD. 7. Whether the suit is within time? OPP. 8. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP. 9. Whether the suit is barred u/s 10 CPC? OPD. 10. Relief." 4. Vide its judgment dated 1.9.94, the trial Court held issue No. 1 against the plaintiffs, issue No. 2 was held having become redundant, issues No. 7 and 8 were held in favour of the plaintiffs and the remaining issues were held against the defendant. However, as a consequence of findings on issue No. 1, the suit was dismissed. Feeling aggrieved, the plaintiffs preferred an appeal which has been dismissed by the learned District Judgment the impugned judgment and decree. 5. I have heard the learned counsel for the parties and have also gone through the records. 6. However, as a consequence of findings on issue No. 1, the suit was dismissed. Feeling aggrieved, the plaintiffs preferred an appeal which has been dismissed by the learned District Judgment the impugned judgment and decree. 5. I have heard the learned counsel for the parties and have also gone through the records. 6. This appeal has been admitted for hearing on the following substantial question of law: "Whether the courts below are right in dismissing the suit of the appellants-plaintiffs without going into the evidence and considering their case that the construction over the land in dispute was made by them after the death of Ramesh Chand and the respondent-defendant, his mother, who had inherited 1/3rd share of the land in dispute had no right to get a share in the constructed portion and she being not in possession could only get her share in the land in dispute by getting the same partitioned?" 7. The learned trial Judge without recording findings on issue No. 2 which arises from the pleadings of the parties, proceeded to dismiss the suit on the premises that the records particularly the entries in mutation Ext. PX show that the land owned by deceased Ramesh Chand, predecessor-in-interest of the parties, was mutated in the names of the parties in equal shares and, thus, the defendant is also a co-sharer of such land. Having arrived at this conclusion, the trial Court relying on 1953 Punjab Law Reporter (Vol. IV) 229, further held that "the rule of law is that the house must be held to be the absolute property of the party who holds the soil on which it is built, "Omne quod inacdificatur solo cedit." Therefore, since the land in dispute undisputedly and admittedly belongs to the parties in equal shares." On the basis of this conclusion, the trial Court held issue No. 1 against the plaintiffs and did not deem it to discuss and decide issue No. 2 and held it to be redundant. Consequent upon the findings on issue No. 1, the suit was dismissed. 8. In Kunj Lal & others vs. Bhagwan Das (1953 P.I.R. Vol. IV 229) relied on by the learned trial Judge, a Division Bench of the Punjab High Court found that the site in dispute belonged to the plaintiff therein. Consequent upon the findings on issue No. 1, the suit was dismissed. 8. In Kunj Lal & others vs. Bhagwan Das (1953 P.I.R. Vol. IV 229) relied on by the learned trial Judge, a Division Bench of the Punjab High Court found that the site in dispute belonged to the plaintiff therein. On the basis of this finding, it was held that the house standing on that site must be presumed to belong to the plaintiff because the rule of law is that the house must be held to be the absolute property of the party who holds the soil on which it is built; Omne quod inaedificatur solo cedit1. The trial Court, however, by relying on the aforesaid proposition of law, without caring to look into the evidence led by the plaintiffs to prove issue No. 2 that the house on the suit land had been constructed by them after the death of Ramesh Chahd exclusively, has clearly acted illegally. No doubt, when it is found that a particular land on which a house is standing is owned by a particular person, the presumption will be that the person who owns the land, is the owner of the house standing thereon. This presumption, however, is not conclusive but is rebuttable. If the ownership of a house is claimed by a person other than the owner of the land on which it is built, such a claim is a matter of proof. It is more so where such land is owned by more than one person. Whether such presumption stood rebutted in the present case or not, could be ascertained only after recording findings on issue tea. 2 which has not been discussed and decided by the trial Court. The lower appellate Court, without taking note of the fact that the trial Court had failed to record finding on a vital issue, the findings where-on would go to the root of the case and will have decisive bearing on the fate of issue No. 1. dismissed the appeal in limine. The approach of both the Courts below inr deciding the suit and the appeal has not only prejudiced the plaintiffs but they have also acted illegally in not recording findings on issue No. 2. dismissed the appeal in limine. The approach of both the Courts below inr deciding the suit and the appeal has not only prejudiced the plaintiffs but they have also acted illegally in not recording findings on issue No. 2. The impugned judgment and decree, therefore, cannot be sustained and deserve to be set aside and the suit deserves to be remanded to the trial Court for disposal afresh. 9. As a result, this appeal is allowed and the impugned judgments and decrees are set aside. The suit is remanded to the trial Court with the direction to re-register it against its old number and date and after affording an opportunity of being heard to the parties, record its findings on issues No. 1 and dispose of the suit on such findings without reopening the other issues. 10. Since the matter has become very old, therefore, the trial Court shall dispose of the suit within 2 months of the appearance of parties before it. 11. Parties, through their learned counsel, are directed to appear before the trial Court on 16-10-2001.