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2015 DIGILAW 1912 (HP)

Suram Singh v. Vijay Singh

2015-12-18

P.S.RANA

body2015
ORDER : 1. Present petition is filed under Article 227 of Constitution of India against the order dated 17.1.2015 and 31.5.2015 passed by learned Civil Judge (Junior Division) Court No. 1 Una District Una (Himachal Pradesh) in Civil Suit No. 53-I/11 titled Suram Singh vs. Vijay Singh and Others. BRIEF FACTS OF THE CASE 2. Sh. Suram Singh plaintiff filed a civil suit for decree of declaration in favour of the plaintiff and against the co-defendants to the effect that plaintiff and co-defendants No. 1 to 3 are owners in possession of suit land in equal share qua the land of Sh. Jaswant Singh who died on dated 25.1.2011 on the basis of succession being Class-I legal heirs. It is pleaded that deceased Jaswant Singh was father of plaintiff and co- defendants No. 1 & 3 and was husband of co-defendant No. 2. It is further pleaded that Jaswant Singh died on dated 25.1.2011 leaving behind plaintiff and co-defendants No. 1 to 3 as Class-I legal heirs. It is further pleaded that plaintiff and co-defendants No. 1 to 3 became owners in possession of suit land on the basis of succession. It is further pleaded that deceased Jaswant Singh did not execute any will dated 11.6.2008 in favour of plaintiff and co-defendants No. 1 to 3. It is further pleaded that deceased Jaswant Singh was not competent to execute any will more than his share of the suit property in ancestral coparcenary property and he was holding the land under Section 30 of the Hindu Succession Act. It is pleaded that will dated 11.6.2008 is void ab initio as it was not signed by two marginal witnesses as required under Indian Succession Act and is the result of fraud and is not binding upon the legal right, title and interest of the plaintiff. It is further pleaded that parties are Hindu and are governed by Hindu Law. It is further pleaded that the marriage of plaintiff son was fixed on 20.6.2011 at Delhi and for that purpose plaintiff alongwith his family members went to Delhi after locking their rooms of ancestral house located in Khasra Nos. 333 and 343. It is further pleaded that parties are Hindu and are governed by Hindu Law. It is further pleaded that the marriage of plaintiff son was fixed on 20.6.2011 at Delhi and for that purpose plaintiff alongwith his family members went to Delhi after locking their rooms of ancestral house located in Khasra Nos. 333 and 343. It is further pleaded that taking undue advantage of absence of plaintiff and his family members defendants broken the locks of rooms which were in possession of the plaintiff and took the possession illegally of the rooms which were in possession of the plaintiff. It is further pleaded that even mutation No. 115 dated 5.9.2011 is wrong, illegal and null and void and has no effect on the legal right of the plaintiff. Plaintiff also sought decree of permanent injunction against the defendants to the effect that defendants should not change the nature of the suit land in any manner and cancellation of entries of mutation on the basis of will dated 11.6.2008 also sought. 3. Per contra written statement filed on behalf of co-defendants No. 1 to 3 in Civil Suit No. 53-1 of 2011 pleaded therein that the suit is not maintainable. It is further pleaded that plaintiff has no cause of action. It is further pleaded that plaintiff did not approach the Court with clean hands and he has concealed the material facts from the Court. It is further pleaded that plaintiff has no locus standi to file the civil suit. It is further pleaded that plaintiff is estopped from filing the present suit by his act and conduct. It is further pleaded that suit land is not coparcenary property of deceased Jaswant Singh. It is further pleaded that suit land was self acquired property of deceased Jaswant Singh and he has every right to bequeath the property as per his wish and choice. It is further pleaded that plaintiff did not serve the deceased Jaswant Singh during his lifetime and also did not serve his old mother and he always tried to harass his father Jaswant Singh and old mother. It is further pleaded that deceased Jaswant Singh had executed will No. 121 dated 11.6.2008. It is further pleaded that entries also recorded in the revenue record as per testamentary document. It is further pleaded that deceased Jaswant had bequeathed Khasra Nos. It is further pleaded that deceased Jaswant Singh had executed will No. 121 dated 11.6.2008. It is further pleaded that entries also recorded in the revenue record as per testamentary document. It is further pleaded that deceased Jaswant had bequeathed Khasra Nos. 805, 807 and 73 in favour of plaintiff and bequeathed all entire other properties in favour of defendants. 4. During pendency of the civil suit plaintiff filed application under Order 39 Rules 1 and 2 read with Section 151 of C.P.C. for grant of ad-interim injunction restraining the co-defendants from changing the nature of the suit land and restraining the co-defendants from getting the mutation sanctioned in their favour on the basis of alleged Will dated 11.6.2008 and restraining the co-defendants from depriving the plaintiff from the joint ownership and possession of the suit land in equal share till disposal of Civil Suit No. 53-1 of 2011. 5. Per contra response filed on behalf of defendants upon application filed under Order 39 Rules 1 & 2 CPC pleaded therein that the suit land is self-acquired property of deceased Jaswant Singh and he was legally competent to execute will dated 11.6.2008. It is further pleaded that the application is filed with malafide intention just to harass the defendants. It is further pleaded that prima facie case and balance of convenience are not in favour of the plaintiff. It is further pleaded that defendants would suffer irreparable loss if ad-interim injunction is granted over the suit land till disposal of Civil Suit No. 53-1 of 2011 titled Suram Singh vs. Vijay Singh and others. Learned trial Court framed issues on dated 20.11.2012 and Civil Suit No. 53-1 of 2011 is pending for evidence of plaintiff as of today before learned Trial Court. 6. On dated 8.6.2011 learned Civil Judge (Sr. Division) Court No. 1 Una passed the following order upon application filed under Order 39 Rules 1 and 2 C.P.C. Order is quoted in toto: “8.6.2011 Present: Sh. Anil Kumar, Advocate for the applicant. Sh. M.K. Sharma, Advocate for the respondents. Time is prayed for filing reply. Allowed. Be put up for same on 23.6.2011 till then both parties are directed to maintain status quo qua possession. Sd- Civil Judge (Senior Division) Court No. 1 Una, Himachal Pradesh.” 7. Anil Kumar, Advocate for the applicant. Sh. M.K. Sharma, Advocate for the respondents. Time is prayed for filing reply. Allowed. Be put up for same on 23.6.2011 till then both parties are directed to maintain status quo qua possession. Sd- Civil Judge (Senior Division) Court No. 1 Una, Himachal Pradesh.” 7. Thereafter on dated 25.11.2011 learned Civil Judge (Senior Division) Court No. 1 Una passed the following order upon application filed under Order 39 Rules 1 and 2 C.P.C. Order is quoted in toto: “25.11.2011 Present: Sh. Anil Kumar, Advocate for the applicant. Sh. M.K. Sharma, Advocate for the respondents. At this stage learned counsel for the parties made the statements that the parties are ready to maintain status-quo qua possession over the suit land till the disposal of the main suit. Their statements to this effect recorded and placed on record. In view of the statements of the learned counsel for the parties, the parties are directed to maintain status quo qua possession over the suit land till the disposal of the main suit. Application stands disposed of. Be tagged with main case file. Sd- Civil Judge (Senior Division) Court No-1, Una, Himachal Pradesh.” 8. Thereafter Suram Singh plaintiff filed application under Order 39 Rule 2-A C.P.C. which was registered as CMA No. 182 of 2011 titled Suram Singh vs. Vijay Singh and another for disobedience of breach of injunction. Thereafter learned trial Court framed the following issues on 29.5.2014 upon the application filed under Order 39 Rule 2-A CPC:- 1. Whether respondents have willfully disobeyed order of this Court dated 8.6.2011 made absolute on 23.6.2011 in CMA No. 115-VI-2011 in Civil Suit No. 53-I-2011 titled Suram Singh vs. Vijay Singh and others? OPP 2. Whether this petition is not maintainable? OPR 9. During pendency of the application filed under Order 39 Rule 2-A CPC for disobedience of breach of injunction petitioner filed application i.e. CMA filed under Section 151 of CPC with the prayer directing the defendants not to interfere in the rooms of ancestral house located in Khasra Nos. 333 and 343 as per jamabandi for the year 2006-2007 situated in Village Hatli Patialan Mouza Muchhali Tehsil Bangana District Una (Himachal Pradesh) and additional relief also sought directing the SHO to remove the locks of the rooms placed illegally and forcibly by the defendants at the back of plaintiff. 10. 333 and 343 as per jamabandi for the year 2006-2007 situated in Village Hatli Patialan Mouza Muchhali Tehsil Bangana District Una (Himachal Pradesh) and additional relief also sought directing the SHO to remove the locks of the rooms placed illegally and forcibly by the defendants at the back of plaintiff. 10. Defendants contested the application pleaded therein that application is not maintainable. It is further pleaded that plaintiff did not lead evidence despite 11 opportunities granted by the learned Trial Court. It is further pleaded that plaintiff wants to take forcible possession of the rooms situated in Khasra Nos.333 and 343 situated in Village Hatli Patialan Mouza Muchhali Tehsil Bangana District Una (Himachal Pradesh). It is further pleaded that when co-defendant No. 1 Vijay Singh was on duty and when his mother and wife were in the fields plaintiff alongwith his family members locked the house of the defendants and the matter was brought in writing to the knowledge of the Gram Panchayat for taking legal action against the plaintiff. It is further pleaded that Pradhan Gram Panchayat personally looked into the matter and found that the plaintiff was wrong. It is further pleaded that Pradhan also observed that plaintiff forcibly put the locks on the house in the absence of the defendants. It is further pleaded that even old mother has been impleaded as co-party in Civil Suit No. 53-1 of 2011 by the plaintiff. It is further pleaded that plaintiff intends to create pressure on defendants to compromise the matter. 11. Learned Trial Court on 31.5.2014 dismissed the application filed under Section 151 C.P.C for police assistance. Thereafter plaintiff filed review petition before the learned trial Court to review the order dated 31.5.2014 passed by learned Trial Court. Learned Trial Court on 17.01.2015 dismissed review application filed under Order 47 Rule 1 read with Section 114 CPC with costs of Rs. 500/-. Feeling aggrieved against the order of learned Trial Court present petition is filed under Article 227 of the Constitution of India. 12. Court heard learned Advocate appearing on behalf of the petitioner and learned Advocate appearing on behalf of non-petitioners and also perused the entire record carefully. 13. Following points arise for determination:- 1. Whether petition filed under Article 227 of the Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition? 2. Final order. 12. Court heard learned Advocate appearing on behalf of the petitioner and learned Advocate appearing on behalf of non-petitioners and also perused the entire record carefully. 13. Following points arise for determination:- 1. Whether petition filed under Article 227 of the Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition? 2. Final order. Findings upon point No. 1 with reasons 14. Submission of learned Advocate appearing on behalf of petitioner/plaintiff that on 20.6.2011 marriage of plaintiff son was fixed at Delhi and plaintiff and his family members went to Delhi and in their absence non-petitioners/defendants forcibly and illegally dispossessed the petitioner from the suit property i.e. rooms situated in Khasra Nos. 333 and 343 as per jamabandi for the year 2006-2007 of Village Hatli Patialan Mouza Muchhali Tehsil Bangana District Una (Himachal Pradesh) and after their dispossession their possession be restored through the assistance of police officials immediately qua two rooms alongwith bath and latrine situated in Khasra Nos. 333 and 343 on the basis of Identity Card No. HP-01/07841 and bank account situated in Central Bank of India at Bangana and on the basis of documents issued by Co-operative Agricultural Services Society Ltd. Tehsil Bangana and in view of the ruling reported in Delhi Transport Corporation vs. Vidhya Wati and Others, W.P. (C) No. 1641 of 1999, dated 23.3.2009 and in view of ruling reported in Tej Ram vs. State of Maharastra, W.P. No. 518 of 2007 and 1449 of 2009 (D) and in view of ruling reported in Civil Appeal No. 1101 of 2006 titled Kirhore Kumar Khaitan and Another vs. Parveen Kumar Singh and in view of ruling reported in 2001 (1) Civil Court Cases 20 titled Jagbir Singh vs. Gajjan Singh is rejected being devoid of any force for the reasons hereinafter mentioned. 15. It is prima facie proved on record that Suram Singh plaintiff and Vijay Singh co-defendant No. 1 are real brothers and Smt. Krishana Devi co-defendant No. 2 is the widow of Jaswant Singh. In the present case dispute is between two real brothers and mother. It is prima facie proved on record that deceased Jaswant Singh had executed registered will No. 121 dated 11.6.2008 which was registered before Sub Registrar. Court has carefully perused the contents of will placed on record. In the present case dispute is between two real brothers and mother. It is prima facie proved on record that deceased Jaswant Singh had executed registered will No. 121 dated 11.6.2008 which was registered before Sub Registrar. Court has carefully perused the contents of will placed on record. There is recital in the will dated 11.6.2008 that plaintiff would acquire property in Khasra Nos. 805, 807 and 73 only. As per testamentary document i.e. will dated 11.6.2008 testator had debarred the plaintiff from inheriting in Khasra Nos. 333 & 343 which is under dispute in the present petition filed under Article 227 of Constitution of India. As per testamentary document i.e. will dated 11.6.2008 Khasra Nos. 333 & 343 have not been allotted to Sh. Suram Singh plaintiff but have been allotted to contesting defendants. 16. Court has also perused the jamabandi of Khasra Nos. 333 & 343 for the year 2006-2007 placed on record comprising in Khewat No. 29 and Khatauni No. 35. Jamabandi for the year 2006-2007 placed on record has been prepared by public servant in the discharge of official duty is relevant fact under Section 35 of Indian Evidence Act 1872 unless rebutted in accordance with law. In the possession column of Khasra Nos. 333 and 343 in Khewat No. 29 and Khatauni No. 35 possession of Jaswant Singh and Dhian Singh have been recorded and nature of Khasra Nos. 333 and 343 has been recorded as Gair Mumkin Abadi. Name of Sh. Suram Singh plaintiff did not figure in the possession column of Khasra Nos. 333 and 343 as per jamabandi for the year 2006-2007 prepared by public servant in the discharge of official duty. 17. Whether suit property is ancestral coparcenary property or not is a matter of disputed facts inter se parties and same facts will be decided by the learned trial Court when Civil Suit No. 53-1 of 2011 titled Suram Singh vs. Vijay Singh and Others will be disposed of finally after giving due opportunities to both parties to lead evidence in support of their case. 18. 18. Whether defendants broken the locks of the rooms which were in possession of the plaintiff during the absence of plaintiff when he was at Delhi in connection with his son’s marriage fixed for 20.6.2011 is complicated matter of facts and complicated matter of facts cannot be decided at this stage by the High Court and same facts will be decided by the learned Trial Court after giving due opportunities to both parties to lead evidence in support of their case. 19. Whether registered will dated 11.6.2008 is a void will or not the same fact also cannot be decided at this stage by the High Court. Whether suit property is co-parcenary ancestral property or not same facts also cannot be decided at this stage by the High Court in view of the involvement of complicated facts. Same facts will be decided by the learned Trial Court after giving due opportunities to both parties to lead evidence in support of their case. 20. Pradhan Gram Panchayat Hatli District Una (Himachal Pradesh) has submitted report placed on record that Suram Singh plaintiff and his wife Neelam have broken the locks of residential house and have also abused the old mother in the presence of Panchayat. Pradhan Gram Panchayat has further submitted report placed on record that Suram Singh plaintiff and his wife Neelam are at fault and co-defendant No. 1 Vijay Singh, his wife and his mother are not at fault. 21. Keeping in view the fact that possession of plaintiff is not recorded in Khasra Nos. Pradhan Gram Panchayat has further submitted report placed on record that Suram Singh plaintiff and his wife Neelam are at fault and co-defendant No. 1 Vijay Singh, his wife and his mother are not at fault. 21. Keeping in view the fact that possession of plaintiff is not recorded in Khasra Nos. 333 and 343 as per revenue record placed on record prepared by public servant in the discharge of official duty and keeping in view the fact that revenue record prepared by public servant under H.P. Land Revenue Act is relevant fact under Section 35 of Indian Evidence Act and keeping in view the fact that report of Pradhan Gram Panchayat placed on record specifically stated that plaintiff/petitioner Suram Singh and his wife Neelam are at fault and co-defendant No. 1/non-petitioner No. 1 Vijay Singh, his wife and his mother are not at fault and keeping in view the fact that co-parcenary ancestral property is still to be proved and keeping in view the fact that learned trial Court has passed the order of status quo only and did not mention in the order of status quo that which party was in actual possession of the suit property prima facie as per documentary evidence placed on record when order of status quo was passed by learned trial Court it is not expedient in the ends of justice to interfere. 22. It is held that where Court orders status quo it means the matters are to remain as they are. It is held that while ordering status quo the Court is bound to decide prima facie possession of parties after perusing all material available before Court. It is held that leaving the matter in doubt and ambiguity while passing the order of status quo same would result in dangerous consequences of criminal proceedings inter se parties. Court is under legal obligation to mention in the order of status quo whether plaintiff or defendant is in possession of the suit land while passing the order of status quo. D. Albert vs. Lalitha and Others, AIR 1989 Madras 73. Court is of the opinion that if the police assistance is granted to the plaintiff/petitioner then same would amount to disposal of application filed under Order 39 Rule 2-A CPC. Order 39 Rule 2-A CPC is punitive proceedings and it requires positive, cogent and reliable evidence in order to punish the guilty person. Court is of the opinion that if the police assistance is granted to the plaintiff/petitioner then same would amount to disposal of application filed under Order 39 Rule 2-A CPC. Order 39 Rule 2-A CPC is punitive proceedings and it requires positive, cogent and reliable evidence in order to punish the guilty person. In view of the fact that application filed under Order 39 Rule 2-A CPC is still listed for evidence Court is of the opinion that it is not expedient in the ends of justice to interfere in the order of learned trial Court at this stage of the case. Point No. 1 is decided against the petitioner. Point No. 2 (Final order) 23. In view of findings upon point No. 1 above CMPMO No. 101 of 2015 titled Suram Singh vs. Vijay Singh and Another is dismissed. Observations will not effect merits of C.S. No. 53-1 of 2011 and will also not effect merits of application filed under Order 39 Rule 2-A CPC in any manner and will be strictly confined for disposal of CMPMO No. 101 of 2015. File of learned trial Court alongwith certified copy of this order be transmitted forthwith. Parties are directed to appear before the learned trial Court on 8th January 2016. CMPMO No. 101 of 2015 is disposed of. Pending applications if any also disposed of.