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2012 DIGILAW 997 (HP)

Tara widow v. Karmi Devis

2012-12-18

V.K.AHUJA

body2012
JUDGMENT V.K. Ahuja, J. 1. This is a regular second appeal filed by the appellants/defendants under Section 100 C.P.C against the judgment and decree of the learned Presiding Officer/ Additional District Judge, Fast Track Court, Mandi, H.P., dated 24.12.2004, vide which he setaside the judgment and decree passed by the learned Sub Judge 1st Class, Sundernagar, dated 30.06.1999, dismissing the suit and decreed the suit of the respondents/plaintiffs. 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 appellants (hereinafter referred to as the defendants). It was alleged by the plaintiffs that they are possessing the land in dispute as owners along with the defendants and the plaintiffs have half share in the property and remaining half share is being possessed by the defendants as owners. The plaintiffs have initiated partition proceedings before the Court of Assistant Collector, Sundernagar and the order of the partition of the property in dispute has also been passed. The suit land is allegedly situated by the side of National Highway-21 and the defendants have already occupied front portion to the extent of their share by raising construction. It was alleged by the plaintiffs that the remaining share on the National Highway is also sought to be occupied by the defendants to deprive them of allotment of the land in the front portion of the suit land adjacent to National Highway. The defendants were also threatening to change the nature of the suit land and intended to sell the same. Hence, the suit for Permanent prohibitory injunction as filed by the plaintiffs. 3. Defendants pleaded that neither khasra Number 960 is possessed by the plaintiffs nor owned by them. They also pleaded that the revenue entries showing the character of the land in dispute to be joint are wrong and illegal. It was also pleaded that the defendants were recorded in exclusive possession of the property in dispute right from 1954-55 to 1981-82 and that wrong revenue entries were incorporated in the year 1988-89 during the consolidation proceedings which resulted in the preparation of wrong missal haquiat. It was pleaded that Kahna was the father of the deceased Santokhi, who was in exclusive possession of the property in dispute. It was pleaded that Kahna was the father of the deceased Santokhi, who was in exclusive possession of the property in dispute. A family settlement took place during the consolidation and the the plaintiffs were given 2-10-0 bighas of land in some other village and they relinquished their claim over the suit land in Muhal Bhaur. Thus, the land in Muhal Bhaur came in exclusive possession of the defendants and revenue entries to the contrary are not tenable in the eyes of law. 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 along with defendants No. 1 and 2, as alleged? OPP 2. Whether the suit land joint interse the parties, as alleged? OPP 3. Whether the plaintiffs are owner to the extent of half share and defendants No. 1 and 2 to the extent of remaining half share as alleged? OPP 4. Whether the defendants No.1 and 2 are throwing threat to occupy and dispose of valuable portion of the suit land to the prejudice of plaintiffs as alleged? OPP 5. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD 6. Whether the plaintiffs have not come to the Court with clean hands if so its effect? OPD 7. Whether the defendants No. 1 and 2 have become owners of the suit land by way of adverse possession, as alleged? OPD 8. Whether the plaintiffs have surrendered the tenancy as such not acquired proprietary rights, as alleged? OPD 9. Whether the defendant No.1 is owner in possession of the suit land by operation of law as alleged? OPD 10. Whether the plaintiffs relinquished their claim in the suit land in favour of the defendants as alleged? OPD 11. Relief 5. Parties led their evidence and the learned trial Court vide its impugned judgment held that the plaintiffs are not owners in possession of the suit land and they were not entitled to the relief of injunction. 6. On appeal, those findings were set-aside by the learned appellate Court and the suit of the plaintiffs was decreed. Being aggrieved, the defendants have preferred the second appeal. 7. I have heard the learned counsels for both the parties and have gone through the record of the case. 8. 6. On appeal, those findings were set-aside by the learned appellate Court and the suit of the plaintiffs was decreed. Being aggrieved, the defendants have preferred the second appeal. 7. I have heard the learned counsels for both the parties and have gone through the record of the case. 8. The appeal in question was admitted by this Court on the following substantial questions of law as framed in the ground of appeal at page-7 which reads as under: 1.Whether the 1st Appellate Court has misread, misinterpreted and misconstrued the oral as well as documentary evidence of the parties, especially the document Ex.DW2/A and the statement of Sh. Ramesh Kumar Ex. DW4/A, which has materially prejudiced the case of the appellants ? 2. Whether the respondents are estopped from raising the plea that they are joint owners in possession of the suit land in view of the documents Ex.DW2/A and Ex. DW4/A ? 3. Whether adverse inference can be dawn against the respondents-plaintiffs by not examining Sh. Billa as witness? 4. Whether presumption attached to the latest revenue record has been rebutted by the appellants and the finding of the 1st Appellate Court is totally contrary to the facts of the case, which has resulted miscarriage and failure of justice to the appellants? 9. The submissions made by the learned counsel for the appellants/defendants were that the plaintiffs have failed to prove that they were owners to the extent of one half share. It was also pleaded that settlement had taken place in between the parties vide Ex.DW4/A and the predecessor in interest of the plaintiffs had relinquished his rights in the suit land in favour of the defendants. Thus, it was submitted that the plaintiffs had failed to prove that they are owners to the extent of half share in the suit land and what ever rights they have were relinquished by their previous owner in favour of the defendants and as such the plaintiffs were not entitled to the relief of injunction. 10. On the other hand, learned counsel for the respondents/plaintiffs have supported the findings of the learned appellate Court for the reasons given therein. 11. The learned trial Court had referred to jamabandi Ex.D1 for the year 1994-95 showing the exclusive possession of Kahna over the suit land who is the predecessor in interest of the defendant Santoki. 10. On the other hand, learned counsel for the respondents/plaintiffs have supported the findings of the learned appellate Court for the reasons given therein. 11. The learned trial Court had referred to jamabandi Ex.D1 for the year 1994-95 showing the exclusive possession of Kahna over the suit land who is the predecessor in interest of the defendant Santoki. This exclusive possession was reflected in Ex.D-2, copy of jamabandi for the year 1958-59, Ex. D-3 copy of jamabandi for the year 1962-63 and Ex. D-4. All these shows the exclusive possession of the defendants but this does not lead to the inference that they are exclusive owners of the suit land. The learned trial Court had wrongly referred to this fact as leading to the inference that the exclusive possession of the defendants qua the suit land extinguished the rights of the plaintiffs over the suit land to the extent of half share. Learned Additional District Judge while referring to the evidence had observed that copy of jamabandi for the year 1988-89 Ex.P-B shows the suit land to be jointly owned and possessed by the plaintiffs Billa, now deceased and defendant No.1 having half share in the suit land. Thus, this copy of jamabandi clearly proved that the suit land was jointly owned and possessed by the plaintiffs and defendants No. 1 and 2 to the extent of half share each. Copy of compromise deed Ex. D-A was rightly disbelieved by the learned Appellate Court since it was containing the alleged thumb impression of the plaintiff Billa though the document was proved by DW-2 Jagdish Lal and DW-3 Katku. The said document was held to have been proved by the learned Appellate Court but, since it can not be said that in the absence of registration this document was admissible in evidence. There was division of the property and it can not be said to be only a document embodying the family arrangement made in between the parties. There was no mention of the khasra number in this document and it can not be said that this document was acted upon or that in the absence of registration of the deed this could be relied upon to prove the exclusive ownership of the defendants over the suit land. 12. There was no mention of the khasra number in this document and it can not be said that this document was acted upon or that in the absence of registration of the deed this could be relied upon to prove the exclusive ownership of the defendants over the suit land. 12. The defendants have not led any evidence to prove as to how they became exclusive owner or that the rights of the plaintiffs over the suit land stood extinguished in their favour in any manner. It has been held by the learned trial Court that the partition proceedings were pending before the A.C. 1st Grade and an appeal was also filed by the defendants which has been dismissed and the matter is still pending. Therefore, once the partition proceedings are pending before the revenue Court, defendants had no right to make any changes in the suit land or raise any construction till partition. Moreover, no injunction can be granted in favour of the plaintiffs restraining the defendants from making any alienation, the defendants were admittedly co-sharers can alienate the suit land subject to adjustment of their rights and subject to the possession but they can certainly be restrained from making any construction over the suit land till partition. 13. Learned Additional District Judge had referred to the evidence in detail and the said evidence has been discussed by this Court and it can not be said that this Court should fully discarded the whole evidence while sitting in second appeal particularly when the first appellate Court has discussed the evidence and had come to the conclusion which can not be said to be perverse or wrong in any manner. No adverse inference can be drawn against Billa, who was alive when the evidence was led before the learned trial Court on behalf of the plaintiffs since he had already died during the pendency of the case. Therefore, no adverse inference can be drawn and there was nothing specific which the said Billa was required to prove except the document in question Ex.DW2/A. Therefore, it can not be said that the plaintiffs had relinquished his right in the suit land in favour of the defendant Santokhi. In so far as the plea of adverse possession is concerned, no evidence was led and the findings in that regard of learned first appellate Court are also liable to be affirmed. In so far as the plea of adverse possession is concerned, no evidence was led and the findings in that regard of learned first appellate Court are also liable to be affirmed. As far as the evidence of the parties, oral and documentary is considered, it is clear that the learned first appellate Court had rightly come to the conclusion and rightly held that the plaintiffs were entitled to the relief of injunction in their favour. 14. Learned counsel for the appellants, during the course of arguments has relied upon the decision in Mukhtiar Singh Vs. Tara Singh and another 2001 (1) S.L.J. 94, wherein it was held that a co-sharer can raise construction on that portion of the property, which is in his exclusive possession but within the limits of his own share without getting the joint property partitioned. This decision does not apply to the present facts since the partition had already taken place in between the parties though it may not have attained finality since it is pending in second appeal but the defendants are not entitled to raise any construction particularly when the plea has been raised that the portion of the suit land is adjacent of the National Highway and most valuable portion and therefore, the defendants can be restrained from raising construction over the said portion. 15. The decision in Bachan Singh Vs. Swaran Singh, 2000(2) S.L.J. 1184, does not help the learned counsel for the appellants since it clearly lays out that co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property. 16. The decision in Krishan Dev Kaushal Vs. Ram Pal Sharma, Latest HLJ 2011(HP) 784, only shows that unregistered deed can be used in evidence to establish the amount of rent which is collateral purpose in the present case. The same is being sought to be used to establish the ownership of the defendants over the suit land which can not be said to be admissible in evidence in the absence of registration. 17. In view of above discussion, I accordingly hold that the findings of the learned first appellate Court below are based upon the correct appreciation of evidence and these do not call for an interference by this Court and as such the appeal filed by the appellants is liable to be dismissed. 17. In view of above discussion, I accordingly hold that the findings of the learned first appellate Court below are based upon the correct appreciation of evidence and these do not call for an interference by this Court and as such the appeal filed by the appellants is liable to be dismissed. There is no merit in the appeal filed by the appellants which is dismissed accordingly. Parties to bear their own costs.