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2013 DIGILAW 438 (UTT)

BIMLA v. MOHD. SALEEM

2013-07-04

Prafulla C.Pant

body2013
JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 04.04.2001, passed by Additional Civil Judge (Senior Division), Roorkee, in Civil Appeal No.34 of 1998, whereby said court has dismissed the appeal and affirmed the judgment and decree dated 19.05.1998, passed by the trial court [1st Additional Civil Judge (Junior Division), Roorkee] in Original Suit No. 214 of 1989. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Brief facts of the case are that the plaintiffs Mohd. Saleem and Fatima Begum filed a Suit No. 214 of 1989, pleading that plaintiff No.1 Mohd. Salim and defendants Iqbal Ahmad and Afzal Ahmad are Bhumidhars in possession of the property shown in Schedule A (of Khasra No. 353, situated in Village Manak Mazra) in the plaint. It is further pleaded that the property mentioned in Schedule B (of Khasra No. 352, situated in Village Manak Mazra) was also owned by plaintiff No.1 Mohd. Saleem and defendant No. 1 Iqbal Ahmad, which was sold to plaintiff No.2 Fatima Begum, vide sale deed dated 01.09.1989. However, another co-sharer Behroz Ali (in Khasra No. 352) sold his 1/4th share to defendant No. 1 and 2, vide registered sale deed dated 26.07.1989, but the rights, as co-bhumidhar in possession of the plaintiffs and defendants No. 6 and 7 remained undisturbed in Schedule B (Khasra No. 352). It is also pleaded by the plaintiffs that defendant No. 1 to 4 have no concern whatsoever with the property mentioned in Schedule A (Khasra No. 353). As to the property mentioned in Schedule B (Khasra No. 352), it is pleaded by the plaintiffs that these defendants have threatened to make exclusive possession over the part of land of Khasra No. 352 and they intend to raise construction. During the pendency of suit, amendment was made in the plaint that in the months of February-March, 1994, the defendants No. 1 to 4 have raised constructions over the property mentioned in Schedule C (which was part of Schedule A and B), violating the temporary injunction granted on 11.11.1989. As such, in the plaint, apart from perpetual prohibitory injunction, the plaintiff sought mandatory injunction for removal of construction allegedly raised by the defendants No. 1 to 4. 4. As such, in the plaint, apart from perpetual prohibitory injunction, the plaintiff sought mandatory injunction for removal of construction allegedly raised by the defendants No. 1 to 4. 4. The defendants No. 1 to 4 contested the suit and filed their written statement, in which, they pleaded that Behroz Ali, (one of the co-sharers in Khasra No. 352) transferred 1/4th of his share through sale deed dated 26.07.1989 to them, and gave exclusive possession over the disputed land, as the same was already partitioned between Behroz Ali and other co-sharers. It is denied by the defendants that they had made any unauthorised construction over the land in dispute. It is also pleaded by the contesting defendants that the suit is barred by Section 41 of the Specific Relief Act, 1963. As to the right of pathway, it is pleaded by the contesting defendants that for the plaintiffs there is already pathway available in Khasra No. 350 and 351. 5. On the basis of the pleadings of the parties, following issues were framed by the trial court:- 1) Whether the defendants No. 1 to 4 were entitled to raise construction over 1/4th portion of the disputed property shown in Schedule B on its northern side, if so, its effect? 2) Whether Behroz Ali had got exclusive possession over his 1/4th share in Khasra No. 352, before he transferred the same to the defendants No. 1 and 2? 3) Whether the suit is bad for multifariousness of the parties and causes of action? 4) Whether the suit is bad for non-joinder of the necessary parties? 5) Whether the suit is under valued and court fee paid is insufficient? 6) To what relief, if any, the plaintiffs are entitled? 7) Whether the suit is barred by Section 41 of the Specific Relief Act, 1963? 8) Whether the defendants raised construction over the disputed property during the pendency of suit and is the same liable to be removed? 9) Whether no cause of action has arisen to the plaintiffs? 10) Whether the defendants have raised constructions as mentioned in Schedule C illegally, if so, its effect? 11) Whether by the disputed construction raised in the property mentioned in Schedule C, the pathway of the plaintiffs got obstructed? 9) Whether no cause of action has arisen to the plaintiffs? 10) Whether the defendants have raised constructions as mentioned in Schedule C illegally, if so, its effect? 11) Whether by the disputed construction raised in the property mentioned in Schedule C, the pathway of the plaintiffs got obstructed? 12) Whether the property mentioned in Schedule B was jointly owned by the plaintiffs and defendant No. 6 and the property was not partitioned, if so its effect? 6. After recording evidence and hearing the parties, the trial court decided all the issues in favour of the plaintiffs except the preliminary issue No.4, with regard to which, a necessary amendment was made by the plaintiffs. The trial court decreed the suit not only for perpetual prohibitory injunction, but also decreed for the mandatory injunction for removal of the construction mentioned in Schedule ‘C’. Aggrieved by said judgment and decree dated 19.05.1998, passed by 1st Additional Civil Judge (Junior Division) Roorkee, in Suit No. 214 of 1989, Civil Appeal No. 34 of 1998, was filed before the 1st Appellate Court, which was dismissed after hearing the parties, vide impugned judgment and decree dated 04.04.2001 [passed by Additional Civil Judge (Senior Division) Roorkee], affirming the decree passed by the trial court. Hence, this second appeal. 7. The second appeal was admitted by this Court on 14.06.2001, on following three substantial questions of law mentioned in memorandum of appeal:- 1) Whether the suit was barred by Section 41 (h) of the Specific Relief Act, 1963, and the courts below have committed manifest error of law in holding otherwise? 2) Whether the courts below have committed error of law in not framing proper issues, which were necessary to determine the real controversy between the parties? 3) Whether the suit for mandatory injunction for demolition of construction was not maintainable against the co-sharer? 8. Substantial question of law No.1 pertains to Clause (h) of Section 41 of The Specific Relief Act, 1963, which provides that an injunction shall not be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. In the present case, it is argued on behalf of the defendants/appellants that the suit for injunction filed by the plaintiffs was not maintainable, as no relief for partition was sought by them. In the present case, it is argued on behalf of the defendants/appellants that the suit for injunction filed by the plaintiffs was not maintainable, as no relief for partition was sought by them. But perusal of the written statement shows that the defendants themselves have pleaded that the share purchased by them from Behroz Ali (one of the co-sharer) was already a partitioned share. As such, it cannot be said that it is open for the defendants to say that the suit is barred by Section 41 (h) of the Specific Relief Act, 1963. Apart from this, since, the plaintiffs have pleaded that in making exclusive possession over the disputed part of the land of Khasra No. 352, defendants have no right to do the same without getting the share purchased by them, partitioned. 9. As to substantial question of law No.2, it is pertinent to mention here that it is not clarified by the defendants/appellants as to what was the issue pressed by them before the trial court, which was not framed by it. As such, at the second appellate stage, this Court is of the view that since the defendants are not clear as to what issue has been left out, this substantial question of law also cannot be decided in their favour. 10. Lastly on substantial question of law No.3, there is concurrent finding of fact recorded by the courts below that the construction as mentioned in Schedule C was raised by the defendants No. 1 to 4 during the pendency of suit. As such, it cannot be said that the suit for mandatory injunction (as amended) during the pendency of suit was not maintainable. It is pertinent to mention here that both the courts below have taken note of the fact that DW1 Nakli Ram (husband of appellant No.1 Bimla Devi), has himself admitted that the construction was raised in the year 1994. From the record, it is clear that the temporary injunction was granted on 11.11.1989, restraining the defendants No. 1 to 4 not to raise any construction over Khasra No. 352. In the above circumstances, the construction said to have been found raised by the defendants No. 1 to 4 during the pendency of suit was liable to be removed, as found by the courts below. 11. In the above circumstances, the construction said to have been found raised by the defendants No. 1 to 4 during the pendency of suit was liable to be removed, as found by the courts below. 11. For the reasons as discussed above, this Court finds no force in this appeal, which is liable to be dismissed. Accordingly, the second appeal is dismissed with the observation that the defendants No. 1 to 4 are at liberty to get their share partitioned from the competent court. Costs easy.