Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 636 (HP)

Mohammad Saddiq v. Abhay Kant

2012-09-26

V.K.AHUJA

body2012
JUDGMENT V.K. Ahuja, J. The present Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant/defendant against the judgment and decree dated 5.10.2000, of the Court of learned District Judge, Sirmaur District at Nahan, vide which he set aside the judgment and decree of the Court of learned Sub Judge First Class, Nahan, dated 9.8.1999, dismissing the suit of the plaintiff for permanent injunction and the relief of permanent injunction was granted in favour of the plaintiffs and as against the defendant. 2. Briefly stated the facts of the case are that the respondents hereinafter referred to as the plaintiffs filed a suit for permanent injunction as against the appellant, hereinafter referred to as the defendant, alleging that the plaintiffs are co-sharers in possession of the land as detailed in the plaint comprised in Khasra Nos. 12 and 828, measuring 1875-49 Sq. Metres. It was alleged that the defendant has got no right, title or interest in the suit land, which is in exclusive possession of the plaintiffs as co-sharers. Hence, the suit for injunction filed by the plaintiff. 3. The defendant took up the plea that he is in possession of the suit land for the last more than 20 years and earlier it was in possession of late Shri Anwar Ul Haq. It was also pleaded that the houses of the defendant have been constructed on the suit land, where the family of the defendant has been living. Plea of adverse possession was also taken by the defendant that he is in possession since March, 1971 and as such, has become owner of the suit land by way of adverse possession. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court:- (1) Whether the plaintiffs are owner in possession of the suit land as alleged? … OPP (1A) Whether the suit land has been allotted to the plaintiffs in partition proceedings by way of instrument of partition dt. 19-05-1972 if so, to what effect? … OPP (1B) Whether the revenue entries showing the suit land to be joint of parties are wrong and illegal? …. OPP (2) Whether the defendant has become owner of the suit land by way of adverse possession? … OPD (3) Whether the plaintiff has no cause of action? 19-05-1972 if so, to what effect? … OPP (1B) Whether the revenue entries showing the suit land to be joint of parties are wrong and illegal? …. OPP (2) Whether the defendant has become owner of the suit land by way of adverse possession? … OPD (3) Whether the plaintiff has no cause of action? … OPD (3A) Whether the defendant is a co-sharer in the suit property by alleged purchase from Mohd. Ali and Allah Rakha, if so, its effect? … OPD 4. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment and decree dismissed the suit of the plaintiff. On appeal, those findings were set aside by the learned District Judge and he granted the relief of permanent injunction in favour of the plaintiffs and as against the defendant from interfering in possession of the plaintiffs over the suit land as co-sharer till partition in accordance with law. 6. Aggrieved, the second appeal was filed by the appellant/defendant. 7. During the course of arguments, learned counsel for the parties had confined their arguments only on the relief granted by the learned Appellate Court keeping in view the subsequent developments mentioned below:- During the course of hearing, the defendants have placed on record certified copy of sale deed Ext. A-1 and copy of jamabandi Ext. A-2, vide which they have purchased part of the suit land and have also become co-sharers alongwith the plaintiffs in the disputed Khasra Numbers. Therefore, the defendants cannot be restrained from interfering in possession of the plaintiffs, since the possession of the plaintiffs has not been held to be over any specific Khasra number. However, they can be restrained from interfering in possession of the plaintiffs over the suit land, which is in joint possession of the plaintiffs alongwith other co-sharers including the defendants. Therefore, the decree in question is liable to be amended to the extent that in view of the subsequent developments, the defendants are restrained from interfering in joint possession of the plaintiffs over the suit land as co-sharers till the partition in accordance with law. 8. Learned counsel for the respondents has also placed on record a certified copy of judgment dated 5.1.2004 Ext. 8. Learned counsel for the respondents has also placed on record a certified copy of judgment dated 5.1.2004 Ext. R-1 passed by the learned District Judge, Sirmaur District at Nahan, in Civil Appeal No. 18-CA/13 of 2003, also in regard to this suit land, vide which both the parties were restrained from changing the nature of the suit property till the matter is finally decided by this Court in this appeal being RSA No. 7 of 2001, which is being decided today by this Court. 9. Accordingly, it follows from the above discussion that the appellants are entitled to the relief granted in their favour till the partition in accordance with law and till then status quo shall be maintained by the parties qua the construction. The parties shall also abide by the judgment dated 5.1.2004 passed by the learned District Judge, Sirmaur District at Nahan, in Civil Appeal No. 18-CA/13 of 2003. 10. In view of the above, the appeal stands partly allowed. Fresh decree-sheet be prepared. Record be sent to the Courts below. 11. Cross Objections No. 146 of 2001 also stand disposed of accordingly, in view of the subsequent development in the case. 12. In view of the disposal of the main appeal, all the pending miscellaneous application(s), if any stand disposed of. Interim order, if any also stands vacated.