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2016 DIGILAW 1091 (HP)

Om Prakash v. Rajpal Sankhyan

2016-06-17

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant Regular Second Appeal arises from the impugned judgment and decree of the learned District Judge, Bilaspur, rendered in Civil Appeal No. 84 of 2005, whereby the latter while allowing the appeal of the defendants/respondents herein reversed the judgment and decree of the learned trial Court. Standing aggrieved from the judgment and decree of the learned District Judge, Bilaspur, the appellant-plaintiff herein has instituted the instant Regular Second Appeal before this Court whereby he assails the findings recorded therein. 2. Briefly stated the facts of the case are that the plaintiff filed a suit against the defendants seeking decree for permanent prohibitory injunction restraining the defendants from interfering in possession of the plaintiff in Khasra No.205 and also of part of khasra No.367/206 on which the plaintiff has constructed a boundary wall to protect his house from the water flowing from upper side and in alternative suit for possession. It was averred in the plaint that the plaintiff is the lessee in possession of plot NO.10, comprising of Khasra No.205. It has been averred that plot/land measuring 8526.28 sq. meters owned by the State of Himachal Pradesh comprising of Khasra No.367/206 which is possessed by the plaintiff to the extent of small portion as shown in the Tatima on which a boundary wall has been raised by the plaintiff to protect his house from the rainy water. It has been averred that no relief is claimed against the State of H.P., as such, it is not arrayed as party. It has been averred that the defendants being forceful and strong persons have demolished the wall on the part of the suit land on 8.11.1998 and as such, the report was lodged with the police, but no action was taken. It is averred that the defendants have encroached upon the valuable land of the Government and raised residential house and is in occupation of the public property illegally and unauthorizedly. The defendants also alleged to have encroached upon the path leading to the house of the plaintiff. It is averred that the defendants have encroached upon the valuable land of the Government and raised residential house and is in occupation of the public property illegally and unauthorizedly. The defendants also alleged to have encroached upon the path leading to the house of the plaintiff. It has been prayed that the decree be passed in favour of the plaintiff and against the defendants qua the suit land and in case they succeed in taking forcible possession of the suit land, the same may be restored to the plaintiff by passing a decree for possession and by demolishing the same by way of mandatory injunction. 3. The defendants contested the suit and filed written statement. It is admitted to the extent that the plaintiff is lessee of plot No.10. However, it is denied that the defendants are in possession of the other land and the same is stated to be in possession of the defendants as owners and the boundary wall is stated to have been constructed and raised by the defendants and not by the plaintiff. It is also averred that the defendants have encroached upon the suit land for the last 35 years and they have now become owner of the suit land and as such neither the State nor the plaintiff has any right, title or interest over the suit land and they have acquired title to the suit land by way of adverse possession. The defendants have also taken preliminary objections qua maintainability, non joinder of necessary parties, cause of action and locus standi. 4. The plaintiff/appellant herein filed replication to the written statement of the defendants/respondents, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the defendants are interfering over the suit land? OPP 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for? OPP 3. Whether the suit of the plaintiff is not maintainable? OPD 4. Whether the suit is bad for non joinder and mis joinder of necessary parties? OPD 5. Whether the plaintiff has no cause of action to institute the present suit? OPD. 6. Whether the plaintiff has no locus standi to file the present suit? OPD. 7. Relief. 6. OPP 3. Whether the suit of the plaintiff is not maintainable? OPD 4. Whether the suit is bad for non joinder and mis joinder of necessary parties? OPD 5. Whether the plaintiff has no cause of action to institute the present suit? OPD. 6. Whether the plaintiff has no locus standi to file the present suit? OPD. 7. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, it decreed the suit of the plaintiff/appellant herein. In an appeal, preferred there from by the defendants/ respondents herein before the learned first Appellate Court, the first Appellate Court while allowing the defendants' appeal, reversed the findings recorded by the learned trial Court. 7. Now the plaintiff/appellant herein has instituted the instant Regular Second Appeal before this Court assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 29.05.2007, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree of the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the Lower Appellate Court has committed grave error of law and jurisdiction in reversing the findings of the Trial Court on Issue No.4 i.e. non-joinder of necessary parties? When the plaintiff in the suit was not claiming any relief against the State of Himachal Pradesh nor the frame of suit was such, which would have made State of Himachal Pradesh as necessary party, has not the Lower Appellate Court committed grave error of procedure in dismissing the suit by holding that State of Himachal Pradesh is necessary party without affording the opportunity to the plaintiff-appellant to array State of Himachal Pradesh as party by ignoring the provisions of Code of Civil Procedure? 2. When the plaintiff-appellant successfully proved the construction of wall raised for the protection of the house of the plaintiff from the flow of water, was not the plaintiff entitled to decree of perpetual as well as mandatory injunction to protect the wall for any unauthorized interference and damage by the defendants on account of plaintiff-appellant being in settled possession on such part of the land in question? 3. 3. When defendants-respondents claimed to have acquired title to the suit property by adverse possession and also denied the title of plaintiff as well as State of Himachal Pradesh, was not it sufficient ground to grant the decree to the plaintiff-appellant to protect the wall from being demolished and interfered by the defendants-respondents? Substantial questions of Law No.1 to 3: 8. Uncontrovertedly, the plaintiff is a lessee upon plot No.10 comprised in khasra No.205. Given his uncontrovertedly holding possession, as a lessee of plot No.10 comprised in khasra No.205, the availing of the apposite remedy by the plaintiff of the defendants standing injuncted from committing thereupon any overt act of invasion or threatened invasion for hence usurping his possession qua land borne on khasra No.205 was tenable besides the rendition of a decree by the learned trial Court restraining the defendants/ respondents herein to interfere with the settled possession of the plaintiff/appellant qua land comprised in khasra No.205 was un-interfereable. Consequently, the judgment and decree of the learned First Appellate Court reversing the decree of the trial Court whereby the latter afforded to the plaintiff the relief of the defendants being permanently injuncted from interfering with the possession of the plaintiff qua land borne on khasra No.205 warrants its standing modified. 9. Be that as it may, the acerbic controversy which besets the parties at lis before this Court centers around the tenability qua the affording of relief of injunction to the plaintiff qua a part of khasra No.367/206 measuring 8526.28 square meters which stands depicted in the apposite revenue record to be exclusively owned and possessed by the State of Himachal Pradesh, the relevant/apposite part whereof stands delineated in tatima Ex.PW1/A whereupon a boundary wall stands erected by the plaintiff/appellant to protect his house from rainy water flowing from the upper side. Apart there from for repulsing the defendants from demolishing it, the tenability of affording by this Court a decree for vacant possession qua the plaintiff/appellant in event of the defendants/respondents securing forcible possession thereof is also enjoined to be adjudicated upon by this Court. 10. The learned trial Court decreed the suit of the plaintiff. The learned First Appellate Court reversed the findings recorded by the learned trial Court. 10. The learned trial Court decreed the suit of the plaintiff. The learned First Appellate Court reversed the findings recorded by the learned trial Court. The depiction in the apposite revenue record, of the State of Himachal Pradesh holding exclusive ownership and possession qua a portion of khasra No.367/206 whereupon as adumbrated in tatima Ex.PW1/A a boundary wall stands erected by the plaintiff- appellant, for obviating any endangerment qua its remaining intact thereat, especially when the defendants by their acts of invasion besides threatened invasions proclaim an intention of demolishing it, the plaintiff seeks a decree of theirs standing injuncted, imperatively warranted the impleadment of the State of Himachal Pradesh as a necessary party to the lis. Even when manifestations qua the State of Himachal Pradesh holding exclusive title and possession qua Khasra No.367/206, in a part whereof a boundary wall stands erected by the plaintiff, the counsel for the plaintiff/appellant did not concert to hence hereinbefore seek impleadment of the State of Himachal Pradesh as a party to the lis. The State of Himachal Pradesh was a necessary party to the lis. The uncontrovertability of the State of Himachal Pradesh holding exclusive title and possession qua the apposite tract of khasra No.367/206 stands accentuated by the depositions of the plaintiff's witnesses who in their respective cross-examinations unequivocally bespeak an acquiescence to the suggestion put to them by the counsel for the defendants qua the apt portion of khasra No.367/207 whereupon the contentious boundary wall stands erected by the plaintiff standing recorded in the apposite revenue record to be exclusively owned and possessed by the State of Himachal Pradesh. Hence, given the manifest factum of the State of Himachal Pradesh holding exclusive title and possession qua khasra No.367/206 on a part whereof the contentious boundary wall stands erected by the plaintiff/appellant, led the learned trial Court to strike an apposite issue qua the suit of the plaintiff being bad for non joinder of a necessary party, yet even when for the reason aforestated, this Court holds of the State of Himachal Pradesh being a necessary party to the lis, the learned trial Court negated the effect of its non impleadment as a party to the lis by the plaintiff on the anvil of no relief standing asked for by the plaintiff against the State of Himachal Pradesh. The reason as afforded by the learned trial Court for rendering dispensable, the impleadment of the State of Himachal Pradesh as a necessary party to the lis was on the anchorage of the plaintiff not asking for any relief against it per se smacks of gross misconstruction by the learned trial Court of the principles enjoined to be borne in mind by it for its affording or refusing the equitable relief of injunction as asked for by the plaintiff/appellant against the defendants/respondents qua a tract of khasra No.367/206, the preeminent principle whereof is of a party asking for the equitable relief of injunction coming to the Court with clean hands, principle whereof stands infracted by the plaintiff omitting to implead the uncontroverted recorded owner in possession of the aforesaid tract of land, on infraction whereof his hence soiling his hands, he stands dis-entitled to the equitable discretionary relief of injunction against the defendants qua it. The learned trial Court has mis-maneuvered both law and evidence in scoring off the imperative necessity of the impleadment of the State of Himachal Pradesh as a party to the lis. Also it has by benumbing the enjoined necessity of its impleadment as a necessary party to the lis being both just and proper party has portrayed stark absurdity besides illogicality. Furthermore, the proactive omission on the part of the plaintiff despite portrayals existing on record of the State of Himachal Pradesh holding exclusive title and possession qua the contentious portion of khasra No.367/206 to make an appropriate motion before the learned trial Court for seeking its impleadment in the array of defendants now estops him to contend before this Court of even if the State of Himachal Pradesh is/was a necessary party to the lis, an opportunity being yet liable to be afforded by the First Appellate Court to the plaintiff/appellant to array it as a necessary party to the lis. Also, any espousal before this Court by the learned counsel for the plaintiff of the learned First Appellate Court in not purveying to it an opportunity to add it as a party to the lis hence its committing a grave illegality cannot stand to be countenanced by this Court, predominantly, with the plaintiff being aware at the outset qua the factum of the contentious portion of khasra No.367/206 standing held by the State of Himachal Pradesh as its exclusive owner in possession, he stood enjoined to with promptitude thereat given his asking for the equitable discretionary relief of injunction qua it standing rendered against the defendants make echoings there before for its impleadment under an appropriate application instituted by him thereat. However, the plaintiff omitted to at the outset despite his awareness qua the impleadment of the State of Himachal Pradesh as a necessary party to the lis being an imperative necessity make an appropriate motion before the learned trial Court for seeking its impleadment in the array of defendants. The overt omission by the plaintiff qua the aforesaid facet appears to stand engendered by the factum of his holding a fallacious view of given his holding settled possession qua the contentious portion of khasra No. 367/206 hence his per se standing entitled to seek from the learned trial Court the rendition by it of an equitable discretionary relief of permanent prohibitory injunction against the defendants for there upon theirs standing restrained from interfering with his settled possession qua the contentious boundary wall erected on a portion of land recorded in the apposite revenue record to be exclusively owned and possessed by the State of H.P. Also with no acts of invasion or threatened invasion standing ascribed by the plaintiff/appellant to the State of Himachal Pradesh rather act of invasions or threatened invasions qua his settled possession upon the contentious portion of khasra No.367/206 standing ascribed by the plaintiff singularly to the defendants appears to erroneously constrain the plaintiff to seek a relief qua the defendants alone standing injuncted from interfering over his possession qua the contentious portion of khasra No.367/206. The learned trial Court also concurred with the pleadings besides the espousals of the plaintiff in consonance therewith of with no relief standing asked for by him against the State of Himachal Pradesh whereupon it proceeded to hence hold of the plaintiff's suit being not bad for misjoinder or for non impleadment of the State of H.P. as a party to the lis, reasons whereof propounded by the learned trial Court for rendering dispensable the impleadment of the State of H.P. as a necessary party to the lis stand concluded by this Court to be grossly off the mark from the solemn principles governing the affording of or refusing by it of the equitable relief of injunction. 11. In aftermath, cumulatively with the State of Himachal Pradesh being a necessary party to the lis emanating from its standing recorded in the apposite revenue record to be holding possession as owner of the contentious portion of khasra No.367/206, its non impleadment at the instance of the plaintiff in the array of defendants was neither dispensable nor relieved the plaintiff from his obligation to seek its impleadment in array of defendants by laying an appropriate motion before the learned trial Court. With the plaintiff omitting at the outset to seek its impleadment in the array of defendants, he cannot for reiteration, when he also omitted to before the learned First Appellate Court seek thereat its impleadment in the array of the defendants, with any fervor make any espousal hereat of with the learned First Appellate Court concluding its impleadment being necessary in the array of defendants, it standing enjoined to afford to him an opportunity to make an appropriate motion before it for seeking its impleadment in the array of defendants besides, his submission qua the opportunity aforesaid not standing granted by it to the plaintiff, hence rendering its impugned rendition to be wanting in legality cannot also make any headway, as the plaintiff stood enjoined to suo motto seek its impleadment by making an appropriate motion even before the learned First Appellate Court rather than aspire of the latter affording an opportunity to him for making an appropriate motion before it for arraying it as a party in the array of defendants. Preeminently, hence the learned trial Court nor the learned First Appellate Court were under any legal obligation to as canvassed by the learned counsel for the plaintiff/ appellant hereat, afford any opportunity to the plaintiff to through an apposite motion laid before them seek its impleadment there before in the array of defendants. Even otherwise, the omission of the plaintiff to seek impleadment of the State of Himachal Pradesh as a party to the lis by constituting an apposite application before both the learned Courts below is a grave omission which now estops the counsel for the appellant/plaintiff to canvass before this Court qua the omissions aforesaid being curable during the pendency of the appeal before the learned First Appellate Court comprised in the latter affording to him an opportunity to cause its impleadment in the array of defendants nor in the First Appellate Court not affording to the plaintiff/appellant an opportunity to seek impleadment of the State of H.P. as a party to the lis, can permeate its rendition with any vice, as any vindication by this Court of the espousal of the learned counsel for the appellant/plaintiff qua the facet aforesaid would undo besides condone the ill effects of the procrastinated pro-active omissions of the plaintiff to despite his awareness of the necessity of impleadment of the State of H.P. as party to the lis, seek at the outset its impleadment in the array of defendants also would tantamount to a validation by this Court of an inapt legal principle of Courts of law purveying opportunities to any party to the lis to beget an addition in the array of plaintiffs or in the array defendants of a necessary party to the lis, relieving thereby the dire entailed legal obligation cast upon any party to the lis to by constituting an apposite application there before seek impleadment of a necessary party thereto either in the array of plaintiffs or in the array of defendants. Sequelly, when the primary legal obligation stands solitarily cast upon any party to the lis to seek impleadment of a proper party either in the array of plaintiffs or in the array of defendants would suffer impairment besides would there upon render dispensable the working of the apposite statutory provisions engrafted in the Code of Civil Procedure, availment whereof is preeminently enjoined upon a party to the lis than by the Court whereat the lis is constituted also constrains this Court to dispel the aforesaid submission of the learned counsel for the appellant/plaintiff. Therefore, any willful abandonment of the mechanism encapsulated in the apposite provisions of the Code of Civil Procedure for addition of by the plaintiffs or the defendants of any necessary party to the lis in the respective arrays imperatively ought to take its toll upon the success or failure of the extant lis preeminently when the plaintiff appears to deliberately undermine despite his awareness throughout qua the necessity of impleadment of the State of H.P. as a necessary party to the lis, the imperativeness of its impleadment therein on the flimsy pretext of no relief standing asked for by him against the State of H.P. 12. Be that as it may, with the imperativeness of the joining of the State of Himachal Pradesh as a necessary party to lis whereas, its standing joining stands unconcerted by the plaintiff/appellant herein by his constituting an appropriate motion either before the learned trial Court or before the learned First Appellate Court whereupon this Court has concluded of the contention of the learned counsel appearing for the appellant/plaintiff of the learned First Appellate Court in not affording an opportunity to the plaintiff to seek impleadment of the State of Himachal Pradesh as a party to the lis renders its verdict to be infirm, holding no tenacity, as a corollary, the affording of the decree of permanent prohibitory injunction besides of mandatory injunction by the learned trial Court qua the contentious boundary wall erected by the plaintiff over a portion of khasra No. 367/206 displayed in tatima Ex.PW1/A, tract of land stands depicted in apposite revenue record to be exclusively owned and possessed by the State of H.P., is per se palpably grossly unjustifiable. The learned First Appellate Court by revering the principles primarily to be borne in mind while affording or refusing the equitable discretionary relief of permanent prohibitory injunction primarily the one of the person, who seeks equity is enjoined to come to the Court with clean hands, its tenably concluded there from of with the plaintiff asking for the relief of injunction qua a portion of land exclusively owned and possessed by the State of Himachal Pradesh, yet its not standing impleaded by him as a party to the lis, hence soiling his hands besides it concluded of the learned trial Court untenably scoring off the necessity of its impleadment in the array of defendants hence precluding it to contest the relief asked for by the plaintiff in the suit, whereupon it would ultimately prejudice the rights which the State of H.P. holds as owner in possession qua the contentious portion of khasra No.367/206. Consequently, for obviating the manifest prejudice which would ensue to the State of H.P. in the event of the decree of the learned trial Court standing vindicated by this Court, would be of its standing defacilitated to launch against the plaintiff the appropriate proceedings in accordance with law for unsettling or usurping his possession qua the contentious boundary wall erected by him on a portion of khasra No.367/206 prods this Court to dismiss the suit of the plaintiff qua the relevant portion of khasra No.367/206. An apt sequitur thereof is of even if the relief of injunction was not asked for by the plaintiff against the State of H.P. nor any overt acts of invasion or threatened invasion stand ascribed by the plaintiff to the State of H.P., both the facets aforesaid would yet not relieve the plaintiff to either implead the State of H.P. as a party to the lis nor would empower the learned trial Court to even when relief qua it is not asked for by the plaintiff render an apposite decree in favour of the plaintiff. Tritely put a trespasser on government land cannot in the absence of impleadment of the State of Himachal Pradesh as a party to the lis for enabling it to contest his suit, aspire to seek from the court concerned the equitable relief of injunction. 13. For the reasons recorded hereinabove, the instant appeal is partly allowed and partly dismissed. Tritely put a trespasser on government land cannot in the absence of impleadment of the State of Himachal Pradesh as a party to the lis for enabling it to contest his suit, aspire to seek from the court concerned the equitable relief of injunction. 13. For the reasons recorded hereinabove, the instant appeal is partly allowed and partly dismissed. Substantial questions of law are answered in favour of the defendants/ respondents and against the plaintiff. In sequel, the judgment and decree rendered by the learned First Appellate Court is modified to the extent that the defendants/respondents are restrained from interfering qua the possession of the plaintiff over land comprised in khasra No.205 measuring 170-20 sq. meters. However, the plaintiff/appellant is not held entitled to any relief qua Khasra No. 367/206 which stands exclusively owned and possessed by the State of H.P. All pending applications also stand disposed of. No order as to costs.