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2012 DIGILAW 568 (HP)

Alpana Kaushal v. Satish Chand

2012-09-17

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. 1. This Regular Second Appeal is directed against the judgment and decree, dated 02.11.2001, passed by the learned District Judge, Kullu, H.P. in Civil Appeal No. 16 of 2001. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellant-plaintiff (hereinafter referred to as “the plaintiff” for the sake of convenience) filed a suit against the respondent-defendant, namely, Satish Chand (hereinafter referred to as “the defendant” for the sake of convenience). According to the plaintiff, one Shri Bala Ram was the owner of land measuring 2-17-0 bighas of land. He gifted two bighas of land to Nirmala Devi by way of gift deed, dated 27.06.66. Nirmala Devi further gifted the land to Smt. Palmo vide gift deed, dated 02.07.1973. Defendant purchased the land from Smt. Palmo vide sale deed, dated 27.02.1989. Bala Ram sold the land measuring 17 biswas to Bimla Rani vide sale deed dated 19.07.1973, from whom the land was purchased by the plaintiff on 19.10.1990. According to the plaintiff, the land was jointly owned and possessed by the parties. Plaintiff was having 17/57 share and defendant was having 40/57 share. However, the defendant without any right and consent of the plaintiff, started raising permanent construction over the most valuable portion of the joint land. He was requested not to do so. According to the plaintiff, the defendant has assured that he would only make construction over his share of the land and will not cover the complete frontage of the plot abutting Bhunter Manikaran road and also would not encroach beyond his share till it is partitioned. However, he did not keep his assurance and covered major portion of the frontage of the plot abutting Bhunter-Manikarn road to the extent of 60 feet and left only 16 feet frontage to the plaintiff. According to the plaintiff, the defendant has constructed in excess of his share in the joint land and has encroached 4 bishwas of joint land beyond his entitlement. 3. The suit was contested by the defendant. The defendant has denied that the suit land was joint. According to him, the partition was got effected by Palmo as she wanted to raise construction and an orchard on the land and Bimla Rani also intended to raise shed over her purchased land. The partition took place in July, 1973. 3. The suit was contested by the defendant. The defendant has denied that the suit land was joint. According to him, the partition was got effected by Palmo as she wanted to raise construction and an orchard on the land and Bimla Rani also intended to raise shed over her purchased land. The partition took place in July, 1973. Thereafter, Palmo and Bimla Rani made improvements upon their respective portion. The defendant purchased two bighas of land from Palmo vide sale deed, dated 27.02.1989 and came in possession thereof. He started raising construction in the month of June, 1989. He got the approval from the Town and Country Planner, Kullu. He has completed the construction of main building in October, 1992. He has also constructed two shops in 1992 and installed 51 RCC pillars in 1993. The lintel was laid in May, 1993 and second in September, 1993. His construction spread from June, 1989 to February, 1995. He has spent huge amount on construction. 4. The replication was filed by the plaintiff. She reasserted her case. The learned trial Court framed the issues on 07.08.1998. The learned trial Court decreed the suit of the plaintiff on 18.12.2000. The defendant preferred an appeal before the learned District Judge, Kullu, H.P. The same was allowed on 02.11.2001. Hence, this Regular Second Appeal. 5. Ms. Ritu, daughter of Sh. Om Parkash has filed an application under Order 1 Rule 10 of the Code of Civil Procedure, for impleadment in the Regular Second Appeal. This application was not opposed and Ms. Ritu was impleaded as respondent No. 2, since she has purchased the land from the defendant, Sh. Satish Chand. 6. This Regular Second Appeal was admitted on the following substantial questions of law on 11.01.2002: “1. Whether the learned Appellate Court has erred in dismissing the suit of the plaintiff in totality and nor upholding the judgment and decree of the trial Court to the effect that suit land was jointly possessed by the parties and that the same had not been partitioned and that defendant was restrained from carrying out any construction over the suit land till the same was partitioned in accordance with law, while agreeing with the findings of the trial court that the suit land was not legally partitioned and that the same was to be partitioned by revenue Courts? 2. 2. That whether the learned First Appellate Court has misread and mis-appreciated the evidence both oral and documentary on record and the findings are thus based on conjectures and surmises? 3. That whether the First Appellate Court could have had refused decree for prohibitory injunction till the partition of the suit land in accordance with law after concluding by way of point No. 1 that the suit land was not legally partitioned in accordance with law? 7. Mr. Ajay Mohan Goel, leaned counsel for the appellant has supported the judgment of the learned trial Court, dated 18.12.2000. According to him, the learned First Appellate Court has mis-read and mis-appreciated the evidence, oral as well as documentary. According to him, since no partition has taken place, the defendant could not raise construction on the suit land till the same was partitioned in accordance with law. 8. Mr. Romesh Verma and Mr. G.R. Palsra, learned counsel for the respondents have supported the judgment and decree passed by the learned First Appellate Court, dated 02.11.2001. 9. I have heard the learned counsel for the parties and 10. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 11. Plaintiff has appeared as PW-1. According to her, the suit land was 2-17-0 bighas and the same has not been partitioned. According to her, the defendant has constructed a septic tank towards her share of the suit land and has also started constructing a house. According to her, the suit land abuts the Bhunter-Manikaran road. According to her, the defendant has occupied 3-4 biswas of land more than his share. She has deposed that when she purchased 17 biswas of land, she was also handed over the possession thereof, but no Patwari was called at the time of taking possession. She has denied the suggestion that when she has purchased the suit land, the defendant had already kept the construction material over his portion of the suit land. She has further admitted that the defendant has a share of two bighas in the suit land. She has seen the defendant raising construction in the month of June 1995. 12. PW-2, Bhim Singh deposed that he was called by the plaintiff for performing some grafting in the orchard of the plaintiff. She has further admitted that the defendant has a share of two bighas in the suit land. She has seen the defendant raising construction in the month of June 1995. 12. PW-2, Bhim Singh deposed that he was called by the plaintiff for performing some grafting in the orchard of the plaintiff. In his cross-examination, he deposed that when he visited the spot in the year 1994, some construction was going on on Southern side of the suit land, though the building was not constructed. According to him, in the year 1996, the construction of hospital was going on. 13. PW-3, Gokal Chand, husband of Nirmala Devi, one of the previous owners of the suit land, deposed that out of the total suit land, two bighas of land belonged to his wife Nirmala Devi, which was sold by her to Smt. Palmo. According to him, the approach to remaining 17 biswas of land was through Bhunter-Manikaran road. He also deposed that his wife was in exclusive possession of two bighas of land. 14. PW-4, Budh Ram, Patwari has deposed that as per the revenue record, there was no partition of the suit land and the suit land has been recorded joint between the parties. 15. PW-5, Ram Prashad is the father of the plaintiff. He has stated that the plaintiff has purchased her share of the suit land from Bimla and this land was abutting the Bhunter-Manikaran road. He also deposed that he was on good terms with the defendant till 1993-94. He further testified that in the year 1994, the defendant approached him that he wanted to construct a hospital. He told him that he could construct the same on Southern part of the suit land since the Northern side of the same was occupied by the plaintiff. Thereafter, in the months of March-April, 1995, he went to the South and returned only in the month of July, 1995. When he came back, he noticed that the defendant has extended his construction towards the land of the plaintiff. Thereafter, on demarcation, four biswas of the land was found in possession of the defendant beyond his share. According to him, no partition of the suit land has taken place. 16. Sh. Satish Malhotra has appeared as DW-1. He has given the description of the property purchased by him. Thereafter, on demarcation, four biswas of the land was found in possession of the defendant beyond his share. According to him, no partition of the suit land has taken place. 16. Sh. Satish Malhotra has appeared as DW-1. He has given the description of the property purchased by him. According to him, Smt. Palmo wanted to construct a house and also to raised an orchard in her share over the suit land, while Smt. Bimla Devi also wanted to raise an orchard. After partition, both these ladies constructed houses, cow-shed and also planted apple trees. On 27.02.1989, he purchased two bighas of land from Smt. Palmo Devi alongwith a house and cow-shed for `1.50 lac. He has sought permission from the Assistant Town and Country Planner, Kullu in the year 1990 vide Ex. DW-1/A. He further deposed that the plaintiff purchased 17 biswas of land from Bimla Rani in the month of October, 1990. He has also stated that he started construction of the building from October, 1992 and completed the same in the month of April, 1995. He also admitted that Khasra No.3934 abuts the Manikaran road. He also admitted that the suit land has not been partitioned. 17. DW-2, Prem Chand has produced the record from the office of Town and Country Planner, Kullu. He was examined to prove Ex. DW-1/A 18. DW-3, Mohan Singh, Photographer has taken photographs on the spot vide Ex. DW-3/1 to Ex. DW-3/26 on 15.06.1995. The negatives of the photographs are Ex. DW-3/27 to EX. DW-3/47. 19. DW-4, Beli Ram has deposed that the defendant was in possession of two bighas of the land and before that, Palmo was in possession thereof for the last 15/16 years and she has also constructed a house and cow-shed and planted plum and apple plants. On the Northern side, Smt. Bimla was in possession. According to him, the defendant has constructed a hospital five years back. 20. DW-5, Palmo Devi, from whom the defendant has purchased the land, has also been examined. According to her, she sold the suit land to the defendant about 12/13 years back for a sale consideration of `1,50,000/- through registered sale deed Ex. DW-5/A. According to her, she partitioned the land in the year she purchased the same from Smt. Nirmala Devi. DW-5, Palmo Devi, from whom the defendant has purchased the land, has also been examined. According to her, she sold the suit land to the defendant about 12/13 years back for a sale consideration of `1,50,000/- through registered sale deed Ex. DW-5/A. According to her, she partitioned the land in the year she purchased the same from Smt. Nirmala Devi. According to her, the partition between her and Smt. Bimla was done by the Patwari, though she could not disclose the name of the Patwari. According to her, no record of partition was prepared. 21. What emerges from the facts stated hereinabove, is that Bala Ram, original owner of the suit land owned 2-17-0 bighas of land, out of which, he gifted 2 bighas of land to Nirmala Devi on 27.06.1966. Nirmala Devi further gifted the land to Smt. Palmo on 02.07.1973. The defendant has purchased two bighas of land from Smt. Palmo Devi vide sale deed, dated 27.02.1989. Bimla Rani has purchased land from Bala Ram, measuring 17 biswas and the plaintiff has purchased 17 biswas of land from Bimla Rani only on 19.10.1990. Thus, it is evident that the possession of both the parties was separate. The land of the plaintiff is situated at a higher level vis-à-vis two bighas of land purchased by the defendant from Smt. Palmo Devi. The land was divided by a retaining wall. Smt. Palmo Devi has planted fruit bearing trees on the land and Bimla Rani has also constructed a house and raised an orchard. This was on the basis of mutual arrangement which was entered into between Smt. Palmo Devi and Bimla Rani to use their land. In stricto senso, there was no partition, but it was an arrangement entered into between Smt. Palmo Devi and Bimla Rani. Smt. Palmo Devi has come into possession of two bighas of land and plaintiff has come into possession of 17 biswas of land. The parties have purchased the property at different times and have been put in possession on different dates. Plaintiff has stated in his statement that when she has taken possession, Patwari has not visited the spot. This arrangement has come in to existence before the property was purchased by the plaintiff on 19.10.1990 and by the defendant on 27.02.1989. 22. The parties have purchased the property at different times and have been put in possession on different dates. Plaintiff has stated in his statement that when she has taken possession, Patwari has not visited the spot. This arrangement has come in to existence before the property was purchased by the plaintiff on 19.10.1990 and by the defendant on 27.02.1989. 22. Case of the plaintiff from the very beginning was that no partition has taken place and, thus, the arrangement, which has been entered into by the predecessor-in-interest of the plaintiff and defendant, cannot be disturbed. The suit property was an agricultural land. The plaintiff has not led any evidence to establish that the defendant has encroached upon 3-4 biswas of land. The construction in this case was completed in the year 1995. There is no material on record to come to the conclusion that the defendant has encroached upon the land of the plaintiff to construct a septic tank. gone through the pleadings and records carefully. 23. PW-5 has deposed that the demarcation was carried out, however, the demarcation report has not been placed on record to prove that the defendant has encroached upon the land of the plaintiff. Thus, the plaintiff has failed to prove that the defendant has raised construction beyond two bighas of land and has encroached upon 3-4 biswas of plaintiff’s land. There is proper appreciation of the evidence, oral as well as documentary by the st appellate Court. There is no substantial question of law involved in this Regular Second Appeal. 24. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs. In view of the findings recorded hereinabove, there is no merit in the Cross-objections and the same are dismissed.