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2013 DIGILAW 508 (HP)

MUNSHI LAL v. RAJIV VAIDYA

2013-05-31

KULDIP SINGH

body2013
JUDGMENT : Kuldip Singh, J. 1. The defendant Munshi Lal has assailed judgement dated 16.10.2012 in Civil Misc. Appeal No. 6/12 passed by learned District Judge, Kullu modifying order dated 3.4.2012 passed by learned Civil Judge (Senior Division), Kullu in CMA No. 298-IV of 2011 on the application of respondent under order 39 Rules 1 and 2 CPC. 2. The facts in brief are that respondent has filed a suit for permanent prohibitory injunction against petitioner restraining him from raising construction over land measuring 13-14-02 bighas comprised in khasra No. 882/2 situate at Phati Bajaura, Kothi Bajaura, except land measuring 0-09-18 bighas comprised in khasra No. 882/1 (for short, suit land) with the allegations that suit land is jointly recorded in the ownership and possession of co-sharers. The respondent is one of the co-sharers and he has raised an apple orchard over a part of the suit land. The orchard of the respondent abuts NH-21 as well as khasra No. 780. 3. As per allegations in the plaint, the petitioner has acquired 4260/80656 share measuring 0-14-09 bighas from Sandip Kumar and Kunti Devi vide mutation No. 4722 of sale. The petitioner has started interfering in possession of the respondent over the orchard forming part of the suit land by illegally trespassing into it. The respondent started 145 Cr.P.C. proceedings against the petitioner in which petitioner had taken a false plea that he acted only as GPA of Painu Ram and sold the share of Painu Ram to Sandip Kumar. He has nothing to do with the suit land. Sandip Kumar was not the real owner, he was acting as Benamidar of the petitioner, who has acquired the entire share of Sandip Kumar. Section 145 Cr.PC. case was illegally dismissed on 16.11.2011 by Sub Divisional Magistrate, Kullu on the ground that petitioner had no interest in the suit land and he had acted only as GPA of Painu Ram. 4. It has also been alleged in the plaint that petitioner on or after 17.11.2011 started proclaiming that he has won the case and he would raise a residential, commercial building over part of the suit land abutting the PWD road in possession of the respondent in the form of fruit bearing orchard. The petitioner threatened to raise construction in excess of his share over the aforesaid fruit bearing orchard which is in possession of respondent. 5. The petitioner threatened to raise construction in excess of his share over the aforesaid fruit bearing orchard which is in possession of respondent. 5. The petitioner has no right of carrying out construction on the suit land, which is substantially agricultural and horticultural land. There are few residential houses over a part of the suit land in the rear as well as by the side of NH-21. The petitioner has no right to change the nature of the suit land, raise construction thereon without the consent of the respondent and other co-owners till the suit land is partitioned. The petitioner is threatening to usurp part of fruit bearing orchard of respondent. 6. The petitioner contested the suit filed by the respondent by filing written statement in which he took preliminary objections of locus-standi, no cause of action, maintainability, respondent has suppressed material facts, malafide. It has been pleaded that petitioner has purchased land measuring 0-14-09 bighas from Sandip Kumar and Sandip Kumar has delivered possession on the spot to the petitioner. The petitioner is in possession of land measuring 0-14-09 bighas out of land measuring 13-14-02 bighas comprised in khasra No. 822/2. The petitioner has not interfered in the possession of respondent. 7. On merits, the petitioner has reiterated that he is owner in possession of land measuring 0-14-09 bighas out of land measuring 13-14-02 bighas comprised in khasra No. 882/2. The petitioner and other co-owners are in possession of the land to the extent of their shares on the spot. The petitioner has no concern with the possession of land of respondent. 8. The respondent filed an application, under order 39 Rules 1 and 2 CPC, which was also contested by the petitioner by filing reply. The trial court allowed the application, the ad-interim injunction dated 26.11.2011 was made absolute on 3.4.2012. In appeal the learned District Judge while dismissing the appeal of petitioner has directed the respondent to file an undertaking that in case respondent would not succeed in suit, then he will compensate the petitioner at the rate of Rs. 50,000/- per year for total number of years for which stay will operate against the petitioner. Such undertaking was ordered to be filed within six weeks from the date of judgement dated 16.10.2012 of the learned District Judge. 9. I have heard the learned counsel for the parties. 50,000/- per year for total number of years for which stay will operate against the petitioner. Such undertaking was ordered to be filed within six weeks from the date of judgement dated 16.10.2012 of the learned District Judge. 9. I have heard the learned counsel for the parties. The learned counsel for the petitioner has submitted that petitioner is owner in possession of land measuring 0-14-09 bighas out of land measuring 13-14-02 bighas comprised in khasra No. 882/2, which petitioner has purchased from Sandip Kumar co-sharer. The petitioner has right to raise construction over this piece of land. The two courts below have not properly appreciated the material on record in granting interim injunction in favour of the respondent. 10. The learned counsel for the respondent has supported the impugned judgement. He has submitted that two courts below after appreciating the material on record concurrently came to the conclusion in favour of granting interim injunction in favour of the respondent. The petitioner has failed to make out a case of error of jurisdiction. The scope of interference under Article 227 of Constitution of India is very limited. The learned District Judge has further directed the respondent to file an undertaking to compensate the petitioner at the rate of Rs. 50,000/- per year till the operation of interim injunction and in the event of dismissal of the suit of the respondent. 11. It is admitted case of the parties that suit land is joint. It has been observed by the learned trial court in the order dated 3.4.2012 that respondent has 96/1136 share in the suit land as per copy of jamabandi 2002-03. This observation has not been challenged. The allegation of the respondent is that petitioner without partitioning the suit land is threatening to raise construction over the suit land even in excess to his share. The petitioner in the written statement has pleaded that he has purchased 0-14-09 bighas land out of land measuring 13-14-02 bighas comprised in khasra No. 882/2 from Sandip Kumar. 12. The petitioner has claimed his possession over 0-14-09 bighas out of the suit land but this area out of land measuring 13-14-02 bighas on the spot has not been identified, defined. At the most, as per the petitioner he is owner in possession of 0-14-09 bigha land out of the suit land, but where is that portion of land that has not been identified. At the most, as per the petitioner he is owner in possession of 0-14-09 bigha land out of the suit land, but where is that portion of land that has not been identified. The application under order 39 Rules 1 & 2 CPC is to be decided on the basis of well known principles of prima facie case, balance of convenience and irreparable loss. The respondent has alleged that petitioner without partitioning the suit land intends to raise construction over the suit land. 13. The petitioner at the most is a co-sharer. He cannot change the nature of the suit land without the consent of other co-sharers and without partitioning the suit land. The petitioner at this stage has failed to identify his possession on specific 0-14-09 bigha land out of the suit land. The two courts below after appreciation of material on record have granted interim injunction in favour of respondent. It cannot be said that decisions taken by the two courts below are without jurisdiction or suffer from error of law, which require correction by way of petition under Article 227 of Constitution of India. There is no merit in the petition. 14. In view of above, the petition fails and is accordingly dismissed. The pending application, if any, is also disposed of in view of disposal of the main petition.