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2016 DIGILAW 1126 (HP)

Ramesh Kumar v. Khushal Chand

2016-06-22

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned P.O. Fast Track Court, Mandi, H.P., dated 1.1.2005, passed in Civil Appeal No. 115/99, 44/2004 and dismissal of cross objection No. 1 of 2004 preferred by the appellant. 2. “Key facts” necessary for the adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff), has instituted a suit for permanent prohibitory and mandatory injunction against the respondents-defendants (hereinafter referred to as the defendants). Key facts are that the plaintiff possesses the suit land to the extent of half share denoted by Kh. No. 1301 situated in Muhal Bhojpur. The houses of the parties are situated adjacent to Kh. No. 1301. A path passes through Kh. No. 1301. A civil suit was instituted by the plaintiff against the defendants, which was decreed by way of compromise on 24.11.1986. It was agreed upon inter se the parties that they would divide path in Kh. No. 1301. The defendants started raising construction over Kh. No. 1301. They obstructed the path in question. The defendants were requested not to raise construction but to no avail. 3. The suit was contested by the defendants by filing written statement. According to the defendants, the path in question stands divided inter se the parties as per the terms of the compromise deed. The plaintiff has also occupied his share on the spot and the remaining portion is being occupied by the defendants. It was denied that the path in question was being obstructed. It was also disputed that the construction was being raised on the path in question. 4. The learned Sub Judge Ist Class, Sundernagar, Distt. Mandi, framed the issues. The suit was decreed partly to the effect that the defendants were restrained by way of permanent prohibitory injunction from interfering in any manner over half portion of Kh. No. 1301 lying vacant on the spot. The defendants, feeling aggrieved, preferred an appeal bearing No. 115 of 1999, 44 of 2004 against the judgment and decree dated 28.8.1999. The plaintiff also filed cross-objections against the judgment and decree dated 28.8.1999 before the learned P.O., Fast Track Court, Mandi. No. 1301 lying vacant on the spot. The defendants, feeling aggrieved, preferred an appeal bearing No. 115 of 1999, 44 of 2004 against the judgment and decree dated 28.8.1999. The plaintiff also filed cross-objections against the judgment and decree dated 28.8.1999 before the learned P.O., Fast Track Court, Mandi. The learned P.O. Fast Track Court partly allowed the appeal preferred by the defendants and judgment and decree of the trial Court dated 28.8.1999 was modified to the extent that defendants were restrained from raising further construction over the vacant portion of the suit land till the suit land was partitioned between the parties and the cross-objections filed on behalf of the plaintiff were dismissed. Hence, this regular second appeal. 5. The regular second appeal was admitted on 25.10.2005. The appeal was not admitted on any substantial question of law. Now, the same would be deemed to have been admitted on all the substantial questions of law framed along with the grounds of appeal, which read thus: “1. Whether both the learned courts below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them, thereby vitiating the impugned judgments and decrees? 2. Whether document Ext. PW-1/A compromise decree dated 24.11.1986 and report of the Local Commissioner Ext. PW-3/A stand misread and mis-appreciated by courts below, thereby vitiating the impugned judgments and decrees? 3. Whether impugned judgments and decrees stand vitiated on account of misreading and mis-appreciating of earlier decree and effect thereof?” 6. Mr. Surinder Saklani, Advocate, appearing on behalf of the appellant, on the basis of the substantial questions of law, has vehemently argued that both the Courts below have erred in oral documentary evidence. According to him, the Courts below have misread Ext. PW-1/A and report of the Local Commissioner Ext. PW-3/A. On the other hand, Mr. Sanjay Sharma, Advocate, has supported the judgments and decrees passed by both the Courts below. 7. Since all the substantial questions of law are inter-connected, hence are taken up together for to avoid repetition of discussion of evidence. 8. I have heard learned counsel for both the sides and have also gone through the judgments and records of the case carefully. 9. The plaintiff has earlier filed a suit. The compromise decree in earlier suit between the parties is dated 24.11.1986. It is marked as Ext. 8. I have heard learned counsel for both the sides and have also gone through the judgments and records of the case carefully. 9. The plaintiff has earlier filed a suit. The compromise decree in earlier suit between the parties is dated 24.11.1986. It is marked as Ext. PW- 1/A. The copy of the compromise deed is Ext. PW-1/B. It is evident from the contents of compromise deed that it was agreed between the parties that the path was joint between the parties situated on suit land measuring 10.32 sq. mts., the same was to be divided by both the parties in equal share and thereafter each party was entitled to use the path in any manner the party liked. 10. The demarcation of the suit land was conducted by PW-3 Surinder Kaundal, the then Tehsildar, Sundarnagar. He was appointed as Local Commissioner by the trial Court. The demarcation was conducted on 24.12.1998. PW-3 Surinder Kaundal has deposed that he visited the spot and conducted demarcation of the suit land as per the settled procedure. His report is Ext. PW-3/A. He also recorded the statements of the parties after demarcation which are Ext. PW-3/B and PW-3/C. The demarcation was conducted strictly as per law. PW-3 Surinder Kaundal was not cross-examined by the defendants on these material aspects. 11. DW-1 Kushal Chand has admitted that the Tehsildar has visited the spot and carried out the demarcation. The statement of DW-1 Kushal Chand was recorded by PW-3 Surinder Kaundal. DW-1 Kushal Chand has shown his satisfaction that the demarcation was carried out by PW-3 Surinder Kaundal on the spot. The statement of plaintiff was also recorded vide Ext. PW-3/C by PW-3 Surinder Kaundal. 12. DW-2 Budhi Singh, Office Kanungo has also conducted the demarcation. This demarcation was conducted on 19.10.1997. The subsequent demarcation report is dated 24.12.1998. It has come on record that the plaintiff was not issued any notice before conducting the demarcation on 19.10.1997, thus the same is liable to be ignored. Rather DW-2 Budhi Singh, Office Kanungo has also admitted that plaintiff was not present at the time of demarcation of the suit land but his wife was present. 13. The defendants, as per Ext. PW-3/A have raised construction over the portion of the suit land measuring 5.13 sq. mtrs., whereas the plaintiff has raised construction over the suit land to the extent of 2.80 sq. mtrs. 13. The defendants, as per Ext. PW-3/A have raised construction over the portion of the suit land measuring 5.13 sq. mtrs., whereas the plaintiff has raised construction over the suit land to the extent of 2.80 sq. mtrs. The plaintiff has not led any cogent evidence to establish that the defendants have raised the construction beyond their agreed share as per the compromise decree. The total area of the suit land is 10.32 sq. mtrs. Both the parties have got half share of the suit land i.e. 5.16 sq. mtrs. 14. The decree for permanent prohibitory injunction could not be passed in favour of the plaintiff restraining the defendants from interfering over the portion of the suit land as the property was still joint. The learned first appellate Court has correctly come to the conclusion that the plaintiff could be held to be entitled to the relief of injunction to restrain the defendants from raising further construction for portion of the suit land till the suit land was partitioned. It has come on record that the suit land, till date, has not been partitioned. The plaintiff has also not led any evidence that the defendants have obstructed the path in question. The intention of the parties, as discussed hereinabove, was to divide the suit land in equal share and after such division each of the party was at liberty to use their shares in the suit land in any manner the party liked. 15. There was no agreement between the parties that none of the parties could raise construction over their share over the suit land. It has come on record that the plaintiff has also raised construction over the suit land to the extent of 2.80 sq. mtrs. The construction raised by the defendants over the suit land cannot be held in violation of the compromise deed arrived at between the parties. Thus, the Courts below have rightly declined the prayer of the plaintiff for passing the decree for mandatory injunction. The learned Courts below have correctly appreciated compromise decree Ext. PW-1/A and report of the Local Commissioner Ext. PW-3/A. The substantial questions of law are answered accordingly. 16. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending applications, if any.