Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 541 (HP)

Tulsi Ram v. Mani Ram

2013-06-14

RAJIV SHARMA

body2013
JUDGMENT Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree, dated 25.07.2007, passed by the learned District Judge, Kinnaur Civil Division at Rampur Bushahr, H.P., in Civil Appeal No. 06 of 2006. 2. Key facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for the sake of convenience) by way of a suit has sought a decree of perpetual injunction restraining the appellants-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) from changing the nature of the land denoted in Khata Khatoni No. 101 min/261, Khasra No. 52, situated in Mauza Chakti, Sub Tehsil Nankhari, District Shimla, H.P. (hereinafter referred to as ‘the suit land’ for the sake of convenience). According to the plaintiff, the suit land was in joint co-ownership of defendant No. 2, his father Bholu Ram, since deceased and other co- sharers. His father has expired and he alongwith his three brothers and mother have succeeded to his estate. A house exists over the suit land, which is in possession of the plaintiff and defendants in equal shares. The suit land has fallen in the share of the plaintiff and defendants in a family partition. The vacant land lying in front of his house is in his possession and a court yard/thrashing yard existing in front of the house of the defendants is in possession of both the parties. According to the plaintiff, on 08.0 1.2005, the defendant No. 1, namely Sh. Tulsi Ram at the instance of defendant No. 2, namely Sh. Jamu Ram, started digging the land in front of his house in order to construct a septic tank. He was requested not to do so, but to no avail. It is in these circumstances, the plaintiff has filed the suit. 3. The suit was contested by the defendants. According to them, a family partition has taken place interse Bholu Ram, the predecessor-in-interest of the plaintiff, defendant No. 2 and Jimu Ram about 24 years ago. There were old residential houses over land denoted by Khasra Nos. 855 and 856. After partition, all of the three brothers added more rooms to their already existing houses. The defendants are having three rooms. Sons of Bholu Ram are also having three rooms and Jimu Ram is having two rooms. All these rooms are in a straight line. There were old residential houses over land denoted by Khasra Nos. 855 and 856. After partition, all of the three brothers added more rooms to their already existing houses. The defendants are having three rooms. Sons of Bholu Ram are also having three rooms and Jimu Ram is having two rooms. All these rooms are in a straight line. The house existing over Khasra No. 52 was in their exclusive possession and vacant land except Khalyan (thrashing floor) lying in front of their house is in their exclusive possession. However, the thrashing floor was kept joint. According to the defendants, during the recent settlement, the plaintiff in connivance with the revenue staff wrongly added thrashing floor in Khasra No. 52 and has wrongly shown it in possession of Bholu Ram. 4. Plaintiff has filed replication. The learned Sub Divisional Judicial Magistrate, Rampur Bushahr, District Shimla, H.P. framed the issues on 21.04.2005. He partly allowed the suit by restraining the defendants from constructing the septic tank over that portion of the land which was specifically pointed out by the Commissioner in his report as well as in his sketch map, dated 28.09.2005 with red ink. 5. Feeling aggrieved by the judgment and decree, dated 12.0 1.2006, the plaintiff preferred an appeal before the learned District Judge, Kinnaur Civil Division at Rampur Bushahr, H.P. He allowed the same on 25.07.2007 and decreed the suit to the effect that the suit land was joint and was not partitioned in accordance with law. The defendants were restrained from raising any further construction of the septic tank and toilet in any manner over the suit land, i.e., land comprised in Khata/Khatauni No. 101 min/261, Khasra No. 52, measuring 0- 0 1-96 hectare, situated in Mauza Chakti, Sub Tehsil Nankhari, District Shimla, H.P. till the same is partitioned in accordance with law. Hence this Regular Second Appeal. 6. This Regular Second Appeal was admitted on the following substantial questions of law on 24.07.2008: “1. Hence this Regular Second Appeal. 6. This Regular Second Appeal was admitted on the following substantial questions of law on 24.07.2008: “1. Whether the first appellate Court below misconducted itself in law and committed a glaring error apparent upon the face of the record on account of the fact that despite admitting the fact that the respondent/plaintiff failed to get any demarcation done of the suit land in order to point out the clear boundaries of Khasra No. 52 and without having done that, without any evidence on record, even not relying the report of Local Commissioner, the first appellate court below decreed the suit of the respondent/plaintiff? 2.Whether the first appellate Court below misconducted itself in law by discarding the report of Local Commissioner, who was appointed by the trial Court on the application preferred by respondent/plaintiff under Order 26 Rule 9 of CPC which was never objected to by the respondent/plaintiff at that stage?” 7. Mr. C.N. Singh, learned counsel for the appellants has vehemently argued that both the Courts below have mis-read the oral as well as documentary evidence. He also contended that the first Appellate Court has wrongly decreed the suit of the plaintiff in entirety without there being any demarcation of the suit land. He also contended that the report of the Local Commissioner, dated 09.0 1.2005, could not be overlooked by the first Appellate Court. 8.Mr. Neeraj Gupta, learned counsel for the respondents has supported the judgment and decree, dated 25.07.2007, passed by the learned first Appellate Court. 9. I have heard the learned counsel for the parties and gone through the pleadings and records carefully. 10. Since both 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. The plaintiff has produced on record the copy of Jamabandi for the year 1998-99 Ex. PW1/A. According to this Jamabandi, the suit land has been denoted in the ownership of Lohari and in possession of Jamu and Bholu. The description of the land has been shown as ‘ola gairmumkin abadi’. A similar entry has been recorded in Misal Haquiat Ex. PW1/B. The plaintiff has also placed on record copy of family register Ex. PW1 /C, copy of Jamabandi for the year 1998-99 Ex. PW1/D, copy of Aks Tatima Shajra Ex. PW1/E, site plan Ex. PW1/F and photographs Ex. The description of the land has been shown as ‘ola gairmumkin abadi’. A similar entry has been recorded in Misal Haquiat Ex. PW1/B. The plaintiff has also placed on record copy of family register Ex. PW1 /C, copy of Jamabandi for the year 1998-99 Ex. PW1/D, copy of Aks Tatima Shajra Ex. PW1/E, site plan Ex. PW1/F and photographs Ex. PX, mark A1 to A6. 12. The defendants have produced on record copy of Aks Tatima Shajra Ex. DW1/A and copy of Jamabandi for the year 1982-83 Ex. DW1/B, according to which, Khasra Nos. 1181/855 and Khasra No. 856 have been shown in ownership and possession of Lohari. The defendants have also produced on record the copy of Aks Tatima Shajra Ex. DW1/C and copy of Misal Haqiat Ex. DW1/D and photographs Ex. DW1/E and Ex. DW1/F. 13. The plaintiff has appeared as PW-1. According to him, the vacant land in front of the house of his father, came to his father and the Khalyan, which was in front of the house of defendant No. 2, was kept as joint for common use of the parties. The defendant No. 2 has raised construction over the vacant land lying towards the right side of his house and has covered more than his share. The suit land has come to his exclusive share. He has denied the suggestion that Khalyan has wrongly been included in Khasra No. 52 during settlement. PW-2, Sh. Nand Lal and PW-3, Sh. Malak Raj have supported the version of the plaintiff. PW-4, Smt. Rimi Devi has not supported the case of the plaintiff. 14.Defendant No. 1, Tulsi Ram, has examined himself as DW- 1. According to him, the partition has taken place about 24 years ago and the house was divided in equal shares between Bholu and Jamu and one old house also came to the share of Jamu, which was at some distance. According to him, the land which was vacant in front of their house had also come to their share and on that land they had constructed two rooms each. According to him, no part of the septic tank was constructed on the land of the plaintiff. No construction has been raised by him in front of the house or land of the plaintiff or his brother. 15. It is evident from Ex. According to him, no part of the septic tank was constructed on the land of the plaintiff. No construction has been raised by him in front of the house or land of the plaintiff or his brother. 15. It is evident from Ex. PW1/A, copy of Jamabandi for the year 1998-99 that the suit land has been mentioned in the ownership of Lohari and in possession of Jamu and Bholu and the nature of the land has been mentioned as ‘ola gairmumkin abadi’. The same entry has been repeated in the copy of Misal Haqiat Ex. PW1/B. According to Jamabandi for the years 1998-99, Khasra No. 52 has been shown in joint ownership and possession of both the parties. It is also clear from photographs Ex. PX, Ex. DW1/E, Ex. DW1/F, Ex. DW1/F and Mark A-2 that part of Khalyan has been broken in order to construct the septic tank. It is also evident that entry to this Khalyan is through the land upon which the defendants have constructed a septic tank. The defendants have not proved the partition, which according to them has taken place 24 years back. They have also not proved that the construction was raised in front of their house. The defendants have also failed to prove that the plaintiff has colluded with the revenue officials to show the joint ownership of Bholu in Khasra No. 52. Since the nature of the land is joint, the construction could not be raised on this land by the defendants. 16. Now, as far as the report of learned Advocate, who was appointed as Local Commissioner, dated 28.09.2005, is concerned, the same is not in accordance with law. In the report, neither the measurement nor the exact location of suit land has been denoted. The report is not as per any scale. It is only a rough sketch and the first appellate Court has rightly ignored this report. In order to raise construction, it was necessary for the parties to get the land partitioned. The report ought to have been prepared with the help of revenue record and by the assistance of revenue officer. Since it is duly established that the land in Khasra No. 52 is joint and the same has not been partitioned, the defendants could not raise any construction on the same without the expressed or implicit consent of the plaintiff. The report ought to have been prepared with the help of revenue record and by the assistance of revenue officer. Since it is duly established that the land in Khasra No. 52 is joint and the same has not been partitioned, the defendants could not raise any construction on the same without the expressed or implicit consent of the plaintiff. The exact location of the suit land was duly established as per the revenue record placed on record by the parties and separate demarcation report was not required. Consequently, there is no substantial question of law involved in this Regular Second appeal. 17.Accordingly, in view of the observations and analysis 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.