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2016 DIGILAW 1200 (HP)

Anita Sharma v. Dina Nath

2016-06-28

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal is maintained by the appellants (hereinafter called as “the plaintiffs”) against the respondents (hereinafter called as “the defendants”) assailing the impugned judgment and decree dated 11.01.2005, passed by learned District Judge, Mandi, H.P. in Civil Appeal No. 65 of 2003. 2. Briefly stating the facts giving rise to the present appeal are that the plaintiffs are joint owners-in-possession with the defendants of the suit land comprised in Khata No. 190, Khatauni No. 360, Khasras No. 530, 531, 533, 534, 535, 536, 537, 538, 540 and 541, Kitas 10, measuring 8966.0 square meters, situated in Mauja Bari, Tehsil Sundernagar, District Mandi, H.P. A house, having a room in the ground floor and verandah (courtyard) in front of it, which is in possession of the plaintiff, is situated in the suit land, which is denoted by Khasra No. 538/1. As per the plaintiffs, the defendants started raising construction of first floor over and above the room and verandah, which is in possession of the plaintiffs, therefore, the defendants were requested not to raise construction till partition of the property is carried out, but the defendants turned deaf ear to the request of the plaintiffs, hence the plaintiffs were compelled to file a suit for permanent prohibitory injunction and in the alternative for mandatory injunction restraining the defendants from raising any construction over Khasra No. 538/1 and to demolish the same, if they succeed in doing so, during the pendency of the suit. 3. The defendants, by filing written statement, admitted joint ownership and possession over the suit land, but they have denied that the house on Khasra No. 538/1 is jointly owned by the parties. Defendants have further averred that they had completed the construction much prior to the filing of the suit. 4. The Learned Trial Court decreed the suit of the plaintiffs by passing a decree of mandatory injunction directing the defendants to remove the construction raised by them on the first floor of the house constructed on Khasra No. 538/1, however, in appeal, the Lower Appellate Court reversed the findings and the judgment of the Trial Court was set aside. Hence the present appeal. 5. The present appeal was admitted on 01.12.2005, on the following substantial questions of law:- 1. Hence the present appeal. 5. The present appeal was admitted on 01.12.2005, on the following substantial questions of law:- 1. Whether the findings of District Judge that the plaintiff had failed to establish that the construction was carried out after the grant of stay order dated 17.04.1997 is based on no evidence and is perverse, when pleadings, documentary evidence and court record raised a irresistible conclusion that the construction of 2nd storey was carried out on the building of appellant against their consent and objections raised by appellant. 2. Whether in the facts and circumstances of the case, the plaintiffs were entitled to a decree of injunction and the construction was raised after filing of the suit and grant of interim injunction by the Court below to the knowledge of the defendants? 6. I have heard the learned counsel for the parties and have also gone through the record in detail. 7. The plaintiffs have failed to place on record the action taken by the police, when police help was granted to the plaintiff after passing of interim order dated 02.05.1997 by the learned Trial Court. The report of the police, if brought on record by the plaintiffs should have been a piece of evidence to prove that the defendants have raised the construction after filing of the suit. It cannot be held that the defendants have raised construction during the pendency of the suit, merely because the plaintiffs managed to get police assistance and they also got ex parte interim order. The best evidence available for the plaintiffs was to prove the report of the police, which could have easily established that the police visited the spot and at that point of time construction work was going on. Later on, plaintiffs again moved another application, dated 06.10.1998, for grant of police assistance for implementing the said order and the learned Trial Court dismissed the same on 17.10.1998, as the learned counsel for the plaintiffs stated at the Bar that neither the defendants disobeyed any order nor they intended to disobey such order in future. It is not understandable that why application, dated 06.10.1998, was moved when the alleged construction had already been completed either in April, 1997 or in March, 1997. If these orders are scrutinized, it is found that even on 06.10.1998 the defendants were carrying out some construction over the suit land. It is not understandable that why application, dated 06.10.1998, was moved when the alleged construction had already been completed either in April, 1997 or in March, 1997. If these orders are scrutinized, it is found that even on 06.10.1998 the defendants were carrying out some construction over the suit land. However, it is not like this, as the statement of the plaintiff was recorded on 05.05.1999 and she has not stated even a single word to this effect. 8. So it is clear that the plaintiffs have failed to establish that the construction work was carried out after the grant of stay order, dated 17.04.1997, passed by the learned Trial Court and the conclusion arrived at by the learned First Appellate Court that the plaintiffs have failed to prove that the construction was raised after filing of the suit, is as per the evidence on record and after appreciating the evidence in its true perspective. So the substantial question No. 1 is answered accordingly, holding that the learned First Appellate Court has rightly appreciated the law, facts and the evidence on record that the construction was not raised by the defendants after filing of the suit and interim order dated 17.04.1997 by the Trial Court. As the construction was not raised after passing of the interim order dated 17.04.1997, by the learned Trial Court on which date the suit was also instituted. Accordingly, substantial question No. 2 is answered by holding that no mandatory injunction can be granted in favour of the plaintiffs and against the defendants. 9. The net result of the above discussion is that the appeal is devoid of merits and is required to be dismissed and is accordingly dismissed. However, in the peculiar facts and circumstances of the case, parties are left to bear their own costs. 10. In view of disposal of the appeal, as above, pending applications, if any, shall also stands disposed of.