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Himachal Pradesh High Court · body

2014 DIGILAW 500 (HP)

Jai Prakash Sharma v. Sushil Kumar Sharma

2014-04-29

DHARAM CHAND CHAUDHARY

body2014
Judgment : Dharam Chand Chaudhary, Judge (oral) Appellant, hereinafter referred to as ‘the plaintiff’, is in second appeal before this Court, because learned District Judge (Forest), Shimla, vide judgment dated 31.7.2013, passed in Civil Appeal No.46-S/13 of 2012/11, has reversed the judgment and decree dated 30.4.2011, passed by learned Civil Judge (Senior Division), Court No.1, Shimla, in Civil Suit No.6/I of 2009 and dismissed the suit. 2. The appeal has been admitted on the following substantial questions of law: 1. Whether the learned lower Courts while allowing the appeal of the respondent/defendant and dismissing the cross-objections of the appellant/plaintiff by learned District Judge (Forest), Shimla and the judgment for not granting decree for mandatory injunction by learned Civil Judge (Senior Division), Shimla, have committed a mistake of law and the same is contrary to the established law of the land? 2. Whether the finding of fat while allowing the appeal and dismissing the cross objections by learned District Judge (Forest), Shimla and the judgment while not granting the decree for mandatory injunction passed by the learned Civil Judge (Senior Division), Shimla in impugned judgments and decree is a result of perversity? 3. Whether the findings given by the lower courts while allowing the appeal and dismissing the cross-objections by learned District Judge (Forest), Shimla and judgment for not granting decree for mandatory injunction by the learned Civil Judge (Senior Division), Shimla are contrary to and ignoring the evidence on record?” 3. The bone of contention in the present lis is Abadi land entered in Khewat No.8/8, Khatauni No.11, Khasra No.26, measuring 0-19-0 Bighas, situated in village Bhoung, Post Office Roundi, Tehsil and District Shimla, as per entries in the Jamabandi for the year 2000-01 Ext. PW1/A. The plaintiff claims his share therein to the extent of 4 biswas. Admittedly, his house and that of the respondent, hereinafter referred to as ‘the defendant’, are in existence on the spot, abutting to the land in dispute. As per plaintiff’s case, his house and that of the defendant as well as other co-sharers are in existence over a portion of the land in dispute and it is for this reason, the same is entered as Gair Mumkin Abadi in the Jamabandi. The remaining land is being used by all co-sharers jointly for common purposes like passage, marriages, religious functions and movements of cattle etc. The remaining land is being used by all co-sharers jointly for common purposes like passage, marriages, religious functions and movements of cattle etc. without there being exclusive right of any particular co-sharer therein. The same is also being used as courtyard of his house and also that of the defendant. The defendant allegedly started digging a portion of the land in front of his house on 29.1.2009 to raise construction thereon forcibly with a view to deprive the plaintiff and other co-sharers from exercising their right of passage and other activities thereon in contravention of the customary and traditional arrangements being adhered to by the co-sharers. The defendant was requested to desist from such activity but of no avail, as he is bent upon to grab and occupy the same to the detrimental of the rights of plaintiff and other co-sharers thereon. Hence, the suit for decree of permanent prohibitory injunction, restraining thereby the defendant from interfering and encroaching upon the land in dispute and also to remove the obstruction, if any, caused during the pendency of the suit. 4. In the written statement, the defendant has contested the suit on the ground of maintainability, estoppel and also raised question of cause of action. On merits, it is claimed that the land stands divided between the parties right from the time of their ancestors and is now in possession of the parties to the extent of their respective shares. It is denied that the vacant land is being used for common purposes. It has further been submitted that whatever area falls in front of the house of the right holders, the same has been allotted to them and is in their exclusive possession. The third house is stated to be that of one Shri Amar Chand and the land in front of his house is in his exclusive possession. The plaintiff allegedly has failed to plead any custom as claimed in the plaint. It has, therefore, been submitted that since the land in front of the house of the defendant is in his exclusive possession, therefore, he has every right to use the same, as per his convenience and that the plaintiff has no right whatsoever to obstruct and restrict the user thereof by the defendant. 5. It has, therefore, been submitted that since the land in front of the house of the defendant is in his exclusive possession, therefore, he has every right to use the same, as per his convenience and that the plaintiff has no right whatsoever to obstruct and restrict the user thereof by the defendant. 5. On the pleadings of the parties, following issues were framed: (1) Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed? OPP. (2) Whether the suit of the plaintiff is not maintainable? OPD (3) Whether the plaintiff is estopped to file the present suit on account of his own acts, deeds, conducts and acquiescence? OPD (4) Whether plaintiff has no cause of action to file the present suit? OPD. (5) Relief. 6. The parties, when put to trial on the issues so framed, have produced the evidence consisting of oral and documentary. Learned trial Court on due appreciation of the evidence so produced and hearing the parties on both sides has answered issue No.1 in favour of the plaintiff, whereas issues No.2 to 4 against the defendant and as a result of findings so recorded, decreed the suit for the relief of permanent prohibitory injunction, restraining thereby the defendant from raising any construction over the vacant portion of the Abadi land till partition thereof, in accordance with law. 7. The defendant feeling aggrieved by the decree of permanent prohibitory injunction passed against him, preferred appeal before learned lower Appellate court, whereas the plaintiff aggrieved by refusal of decree of mandatory injunction, also preferred cross-objections. Learned lower Appellate Court has not only dismissed the cross-objections, but also reversed the decree of permanent prohibitory injunction passed by learned trial Court in the suit. The suit, as a matter of fact, was ordered to be dismissed with further observation that no prejudice is likely to be caused to the plaintiff by digging the land in dispute for raising construction of a septic tank over a portion thereof which the defendant will ultimately level and can be put to use as passage etc. 8. The challenge to the impugned judgment and decree is on the grounds, inter alia, that learned lower Appellate Court has gone wrong in reversing the judgment and decree passed by learned trial Court. 8. The challenge to the impugned judgment and decree is on the grounds, inter alia, that learned lower Appellate Court has gone wrong in reversing the judgment and decree passed by learned trial Court. The refusal to decree the suit for the relief of mandatory injunction is also stated to be not legally sustainable and rather based on conjectures and surmises. The evidence available on record has not been considered, appreciated, interpreted and construed in a right perspective and to the contrary recorded the findings which are inconsistent and contradictory to the evidence produced by the parties. It has, therefore, been submitted that the suit was liable to be decreed not only for the relief of permanent prohibitory injunction, but mandatory injunction also, in case the defendant succeeded in digging out a pit over a portion of the suit land forcibly. The impugned judgment and decree, therefore, has been sought to be quashed and set aside. 9. Shri Vivek Thakur, learned counsel, appearing on behalf of the appellant-plaintiff has forcefully contended that it was for the defendant to have proved the plea of partition, he raised in the written statement. The findings to the contrary recorded by learned lower Appellate Court have, therefore, been stated to be contrary to the record, hence perverse. The customary and traditional rights of the co-sharers over the land in question are stated to be specifically pleaded in the plaint. The portion of the suit land over which the defendant started raising construction of the septic tank has been pinpointed in the sketch map. The admission on the part of the defendant and the witnesses he examined that there exist common stairs, water tap and common passage over the suit land, according to Mr. Thakur, goes to the very root of the present case. In case no common passage was in existence over the land in dispute, where was the occasion for the defendant to have undertaken before learned lower Appellate Court that after construction of septic tank, that portion of the land will be levelled for being used as passage. It has also been pointed out from the record that learned lower Appellate Court has chosen to discuss the evidence in part and not as a whole, which according to learned counsel, has resulted in recording of wrong findings. 10. It has also been pointed out from the record that learned lower Appellate Court has chosen to discuss the evidence in part and not as a whole, which according to learned counsel, has resulted in recording of wrong findings. 10. On the other hand, Shri G.C. Gupta, learned Senior Advocate, has contended that the plaintiff has miserably failed to prove his case as set out in the plaint. The so called customs and traditions are neither specifically pleaded nor proved. The plea that the land in dispute is un-partitioned is not at all proved. Nothing suggesting that for all common purposes the land in dispute is being used has come on record. Mr. Gupta, learned Senior Advocate, has also drawn the attention of this Court to the findings recorded by learned lower Appellate Court that in the event of land being restored to its original condition after construction of septic tank, the raising of such construction would not be to the detrimental of the plaintiff and submitted that in view of the observations so made, no prejudice is likely to be caused to the case of the plaintiff on account of raising of construction of septic tank over a portion of the land in dispute. Mr. Gupta has also pointed out from the record that no substantial question of law is involved in the case in hand, which needs to be adjudicated upon in the present appeal. The evidence, according to him, has rightly been discarded by learned lower Appellate Court being not plausible and sufficient to establish the rights, the plaintiff claims in the suit land. It has also been pointed out that mere marking of documents during the course of trial of the suit does not dispense with the proof of such document. In order to strengthen the contention so raised, Mr. Gupta has also placed reliance on the law laid down by the Apex Court and also this Court by way of various judicial pronouncements. 11. It is seen from the submissions made on both sides that besides the determination of substantial questions of law so formulated in this appeal, the question such as, whether the plaintiff has any established right to claim the land in dispute to be joint of the parties and being used for common purposes, like passage etc, also arises for determination in the present lis. Mr. Mr. Gupta has placed reliance on the judgments of Hon’ble Apex Court in Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board, (2010) 13 SCC 216 , Amiya Bala Dutta and others Vs. Mukut Adhikari and others, (2011) 11 SCC 628 and Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 to substantiate his contention that the judgment and decree passed by the Court below after appreciation of the evidence available on record in its right perspective cannot be interfered with in Regular Second Appeal. There cannot be any denial to such proposition settled in these judgments. However, it depends upon the facts of each case that the interference by the High Court in the given facts and circumstances of a case before it is warranted or not. There is again no denial to the settled legal proposition that mere marking of a document does not dispense with proof of such document, as settled by a Division Bench of this Court in Charan Singh Vs. Joginder Singh and another, Latest HLJ 2002 (HP)-(DB) 789 and M/s C.M. Auto Stores and others Vs. Union Bank of India, 1998 (2) SLC 135, 12. Now it is in the above background, the substantial questions of law formulated in the present appeal are to be considered and adjudicated upon. In the considered opinion of this Court, substantial questions of law No.1 and 2 are not at all arise in the given facts and circumstances of this case, hence need no adjudication. Learned counsel, representing the appellant-plaintiff has also not disputed this aspect of the matter and rather according to him, only the question of perversity of the impugned judgment and decree in view of misappreciation and misconstruction of evidence covered under substantial question No.3 arises for determination. 13. Be it stated that in legal parlance any finding which is not supported by evidence or inference drawn in a stretched and unacceptable manner can be said to be perverse. The High Court in a second appeal can interfere with the finding of fact, of course, only in those cases where it is established that the conclusions recorded by the Courts below are manifestly perverse and not supported by the evidence on record. 14. The High Court in a second appeal can interfere with the finding of fact, of course, only in those cases where it is established that the conclusions recorded by the Courts below are manifestly perverse and not supported by the evidence on record. 14. The point in issue, whether learned lower Appellate Court has failed to appreciate the pleadings and also the evidence available on record and rather misconstrued the same while reversing the judgment and decree passed by learned trial Court and dismissing the suit and also the cross-objections or not, needs reappraisal of the entire material available on record. 15. In the plaint the case set out is that the land in dispute is Abadi in the joint ownership and possession of all the right holders, including the parties to suit and is being used as passage and for other common purposes like religious functions, marriages and movements of cattle etc. and the defendant allegedly raised construction over a portion thereof forcibly in contravention of such customary and traditional use thereof. True it is that the customs and traditions have not been specifically pleaded in the plaint nor is there any evidence, which as a matter of fact has come on record by way of placing on record the copy of Wazib-ul-araz etc., however, irrespective of that, I am not in agreement with the submissions that the plaintiff has failed to prove the rights, he claimed in the plaint for the reasons that user of the suit land for common purposes, as pleaded in the plaint, not only finds support from the own statement of plaintiff, who has stepped into the witness box as PW-2, but from that of PW-1 Bhagat Ram, Patwari of Sangti Patwar Circle and for that matter even from the testimony of PW-3 Rajinder Sharma also. In this behalf, I would like to make reference to the version, as has come on record by way of statement of PW1 Bhagat Ram. No doubt, as per his version in the Jamabandi Ext. PW1/A, no passage has been shown over the suit land, however, according to him, this land is being used by all the right holders on the spot for common purposes. It has also come in his statement that Abadi land can be used by a right holder to the extent, the same is in his possession. PW1/A, no passage has been shown over the suit land, however, according to him, this land is being used by all the right holders on the spot for common purposes. It has also come in his statement that Abadi land can be used by a right holder to the extent, the same is in his possession. PW-2 Jai Prakash, who is plaintiff himself, has also supported his case in this behalf. He has also proved Sketch Map Ext. PW2/B, which contains his own house and that of the defendant. Land in front of their houses has also been shown in this document. Not only this, but the photographs Ext.P1 to P3 also depict the location of both the houses. No doubt, it has been urged on behalf of the respondent-defendant that sketch map Ext. PW2/B and for that matter photographs Ext. P1 to P3 cannot take the place of proof as these could have only been produced by way of examining the persons who have prepared the sketch map and taken the photographs and also producing in evidence the negatives of such photographs, however, this objection is hardly of any help to the defendant’s case for the reason that in the cross-examination no suggestion has been given to any witness that the photographs are not that of the spot and that the sketch map has not been prepared by the plaintiff. Therefore, the law laid down by this Court in Charan Singh’s case supra, that mere marking of an exhibit does not dispense with the proof of document is not attracted in the given facts and circumstances of this case. The suggestion given to the plaintiff in his cross-examination that except for the Abadi land in front of his house he is not in possession of the remaining Abadi, leads to the only conclusion that the defendant himself admitted the Abadi in front of the house of the plaintiff to be in his possession. No doubt, the house of the defendant is also adjoining to that of the plaintiff and the Abadi in front of the house of the defendant may be in his possession, however, not exclusively and rather joint with that of plaintiff and for that matter other co-sharers also for the reason that the plea of partition raised by the defendant in the written statement is not at all proved. Defendant himself has stated that only the houses existing over the land in dispute were partitioned during the life time of the grand-father of the parties. He also admits the house of the plaintiff in right side of his house. No doubt, he tells us that even the adjoining land was also given to the respective owners of the houses, however, there is no mention in this behalf in the Jamabandi. No record, such as Rapat etc. entered in the Rojnamcha to this effect nor any partition deed has been produced. No doubt, he denies that the land is being used by all the three families to have access to their fields and the water source, however, admits that the land in front of the house of one Amar Chand is being used by him and the plaintiff and other right holders for taking the dead bodies to the burial ground and also to have access to their fields. DW-2 Sh. Amar Chand and DW-3 Dinesh Kumar have also admitted this fact in their cross-examination. DW-2 Amar Chand further admits in his cross-examination that the water tap installed over the vacant land in front of both the houses i.e. that of the plaintiff and the defendant, is common. He also admits that during functions in the village the water is fetched from this tap. Not only this, he further admits that the land in front of these houses is being used by all concerned as passage. 16. DW-3 Dinesh Kumar is brother of the parties in relation. He has stated in cross-examination that he has not witnessed any partition between the co-sharers and also that no entry qua such partition has ever been made in the revenue record. 17. 16. DW-3 Dinesh Kumar is brother of the parties in relation. He has stated in cross-examination that he has not witnessed any partition between the co-sharers and also that no entry qua such partition has ever been made in the revenue record. 17. Therefore, no doubt the defendant in his own statement as DW1 as well as DW-2 and DW-3 all have stated in one voice that the land in front of the respective houses in the village is in the exclusive possession of the owners of such houses on the basis of so called partition having taken place during the life time of the forefathers of the parties and other right holders, however, a close scrutiny of the evidence, as is discussed hereinabove, makes it crystal clear that the water tap installed over a portion of the suit land in front of the houses of the plaintiff and the defendant is common and being used for fetching water at the time of functions etc. in the village. The land adjoining to the third house i.e. of Amar Chand is being used for taking dead bodies to burial grounds and to have access to the fields. Not only this, but as per the version of DW-3 Dinesh Kumar the vacant land is being used as passage by all the right holders. 18. Therefore, it would not be improper to conclude that the suit land is joint and being used for common purposes by all the right holders and it lies ill in the mouth of the defendant to say that the said Abaid is in exclusive possession of each and every right holder, including the parties to suit. 19. Further contention raised on behalf of the defendant is that the onus to prove that the suit land is still un-partitioned and joint was on the plaintiff. However, the simple case of the plaintiff is that the suit land being joint of right holders is being used for common purpose such as passage and also for arranging common functions. His case in this behalf not only finds support from the evidence he produced, but also from that of the defendant and the witnesses he examined. 20. Much has been stated about the admission made by the plaintiff that the right holders have partitioned the houses. His case in this behalf not only finds support from the evidence he produced, but also from that of the defendant and the witnesses he examined. 20. Much has been stated about the admission made by the plaintiff that the right holders have partitioned the houses. Such admission, however, is of no help to the case of the defendant for the reason that undisputedly the houses stand partitioned and all the share holders are in possession of their respective houses allotted to them during such partition. The admission, however, does not pertain to the partition of the vacant land. 21. Undue weightage has also been given to the only sentence in the cross-examination of PW-1 that a right holder in Abadi land acquires rights in that portion of the land which is in his possession, however, erroneously for the reason that on the record it has otherwise been established that the land is not in exclusive possession of the share holders and rather is being used for common purposes. Even DW-1 has stated so in his examination-in-chief which part of his statement has been omitted to be referred to by learned lower Appellate Court for the reasons best known to it. PW-3 Rajinder Sharma, no doubt, tells us about partition, however, only qua partition of the houses. He is categoric in stating that at the time of partition of house, the vacant land was not partitioned and the same was kept joint. 22. In case no passage was in existence over the land in front of the house of the plaintiff and the defendant, where was the necessity for learned lower Appellate Court to have observed that after raising the construction of septic tank, the same will be levelled for being used as common passage and in that event no prejudice is likely to be caused to the plaintiff. Meaning thereby that there exists a passage for being used by all the right holders, including the plaintiff. 23. There is no denial to the digging of the land by the defendant in front of his house and that of the house of the plaintiff for the purpose of raising construction of a septic tank. Meaning thereby that there exists a passage for being used by all the right holders, including the plaintiff. 23. There is no denial to the digging of the land by the defendant in front of his house and that of the house of the plaintiff for the purpose of raising construction of a septic tank. As noticed supra, even learned lower Appellate Court has observed so in the impugned judgment and decree qua construction of septic tank by the defendant over the suit land, however, qualified the same with the observation that after construction of septic tank, the land will be levelled and can be put to use as passage. The defendant, however, is not at-all entitled to raise any construction over any portion of the suit land being joint of all the right holders and used for common purposes, unless and until partitioned by due process of law. Partition of Abadi land is permissible. A reference in this behalf can be made to the judgment of a coordinate Bench of this Court in Kewal Ram Vs. the Gram Panchayat, Bhutti and others, AIR 1988 HP 21 . 24. Learned trial Court, therefore, has not committed any illegality and irregularity while decreeing the suit for the relief of permanent prohibitory injunction. 25. So far as the prayer for grant of mandatory injunction is concerned, learned trial Court has not framed any issue in this behalf nor does the plaintiff seem to have pressed any such issue. On the other hand, learned trial Court while answering issue No.1 has concluded that the defendant is not entitled to raise construction over that portion of the suit land which is joint of the parties. Hence, irrespective of no issue having been pressed in this behalf, there shall be a direction to the defendant to fill up the pit he dug and restore that portion of the suit land to its original condition so that the same can be used as common passage by the parties and other right holders. 26. The ratio of judgment in Union of India and others Vs. Vasavi Cooperative Housing Society Limited and others, (2014) 2 SCC 269 , is not attracted in the case in hand, because the present is not a suit for declaration of title and possession and rather a suit simplicitor for the relief of permanent prohibitory and mandatory injunction. 27. 26. The ratio of judgment in Union of India and others Vs. Vasavi Cooperative Housing Society Limited and others, (2014) 2 SCC 269 , is not attracted in the case in hand, because the present is not a suit for declaration of title and possession and rather a suit simplicitor for the relief of permanent prohibitory and mandatory injunction. 27. The present is a case where learned lower Appellate Court has not appreciated the pleadings and the evidence available on record in its right perspective and has rather travelled beyond the record while reversing the judgment passed by learned trial Court and dismissing the suit. 28. The impugned judgment, therefore, being perverse is not legally and factually sustainable. Consequently, the appeal succeeds and the same is accordingly allowed. Impugned judgment and decree is quashed and set aside and that of learned trial Court affirmed. Parties, however, to bear their own costs.