Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1373 (HP)

Roshan Lal v. Beli Ram

2016-07-14

DHARAM CHAND CHAUDHARY

body2016
JUDGMENT : Dharam Chand Chaudhary, J. Petitioner herein is the defendant in Civil Suit No. 96-I/11. The respondents are the plaintiffs. Their predecessor-in-interest Shri Med Ram was owner of the suit land detailed in para 1 of the plaint situated in Mauza Dhanda, Tehsil Shimla (Rural), District Shimla to the extent of 1/8th share. The total land is 85-11 bighas. The 1/8th share of Shri Med Ram therein comes to 10-14 bighas. Deceased Med Ram has allegedly executed a will dated 22.06.1995, a copy whereof has been placed on record by the parties on both sides. The suit land, as per this will, has been bequeathed by deceased Med Ram in favour of the petitioner-defendant in exclusion of his remaining sons and daughters, the plaintiffs. 2. The plaintiffs have sought declaration to the effect that the suit land being ancestral in nature has been inherited by them along with defendant, their brother in equal shares. In view of the ancestral nature of the suit land, the same could have not been bequeathed in favour of defendant and in exclusion of the plaintiffs. Therefore, the will has been sought to be declared as illegal, null and void and as a consequential relief, decree for permanent prohibitory injunction restraining the defendant from interfering with the lawful ownership and possession of the plaintiff over the suit land and also restraining him from transferring, selling, mortgaging or creating any third party interest over the suit land as well as encumbering the same in any manner whatsoever has also been sought. 3. Along with the suit, an application, registered as CMA No. 102-6 of 2011 under Order 39 Rules 1 and 2 of the Code of Civil Procedure was also filed for grant of ad-interim injunction restraining the defendant during the pendency of the suit from alienating, encumbering or disposing of the suit land in any manner whatsoever. Learned trial Court on hearing the parties and also going through the record has arrived at a conclusion that neither there exists a prima facie case in favour of the plaintiffs nor balance of convenience lie in their favour. Also that, they will not suffer irreparable loss and injury in case the injunction is not granted. Learned trial Court on hearing the parties and also going through the record has arrived at a conclusion that neither there exists a prima facie case in favour of the plaintiffs nor balance of convenience lie in their favour. Also that, they will not suffer irreparable loss and injury in case the injunction is not granted. The application as such, was dismissed vide order dated 07.04.2012, Annexure ‘A’ with the observations that the alienation of the suit property by the defendant will otherwise be subject to the order passed by this Court as per the provisions of Transfer of Property Act. 4. The plaintiffs have assailed the order Annexure ‘A’ in appeal, registered as Civil Miscellaneous Appeal No. 10-S/14 of 2012. Learned Additional District Judge (I), Shimla has allowed the appeal vide order dated 02.08.2013 and quashed the impugned order dated 07.04.2012. Consequently, the defendant has been restrained from alienating, transferring, or creating any charge over the suit land till the main suit is pending disposal. 5. It is this order, which has been assailed, in this petition on the grounds inter-alia that no documentary proof is produced by the plaintiffs to establish ancestral nature of the suit land. The plaintiffs have been given the land at Village Galot in lieu of the suit situated at village Dhanda. The will was executed in the year 1995 and the testator died in the year 2006. The plaintiffs have never challenged the will during the life time of the testator till the filing of the present suit in the year 2011. All these material facts have been ignored by learned lower appellate Court and to the contrary passed the impugned order on surmises and conjectures without appreciating the pleadings and documents produced by the parties on both sides in its right perspective. 6. Mr. Bhupinder Singh Kanwar, learned counsel representing the petitioner-defendant has strenuously contended that by virtue of the will, which is duly registered, it is the defendant, who is owner in possession of the suit land. According to him, ancestral nature of the suit land is not at all established. Also that, in lieu of the suit land, the plaintiffs have been given land in village Galot, by their father deceased Med Ram, the testator. Mr. According to him, ancestral nature of the suit land is not at all established. Also that, in lieu of the suit land, the plaintiffs have been given land in village Galot, by their father deceased Med Ram, the testator. Mr. Kanwar, while drawing the attention of this Court to the prayer made in the plaint has pointed out that the plaintiffs have claimed their share in the suit land to the extent of 16.25 square meters each, which according to him, corresponds to ½ biswa of land in bigha. Therefore, in view of the meager share they claimed in the suit land, the defendant cannot be restrained from using the same in a better manner as per his convenience. 7. On the other hand, Mr. K.R. Thakur, learned counsel representing the respondents-plaintiffs has drawn the attention of this Court to the detail of the suit property given in paras 1 and 2 of the plaint and contended that the same is 10-14 bighas. The plaintiffs and defendant are owner thereof in equal share i.e., around 2 bighas, which according to Mr. Thakur is 00-16- 25 hectares. He has also clarified that in the prayer clause, each share should have been mentioned as 00- 16-25 hectares, instead of 16.25 square meters. In order to establish the ancestral nature of the suit land, he has relied upon the copy of ‘Aks Shazra Nasab’ (pedigree table). 8. On analyzing the rival submissions and also the record of this case, owner of the suit land admittedly was Med Ram, predecessor-in-interest of the parties on both sides. The defendant claims himself to be the exclusive owner thereof on the basis of will dated 22.06.1995. True it is that as per recitals in this document the suit property, which is situated at village Dhanda in Tehsil Shimla (Rural), District Shimla has been bequeathed by the testator aforesaid Shri Med Ram in favour of defendant. The plaintiffs, however, claim their ownership and possession to the extent of equal shares therein. According to them they are in physical possession of the suit land on the spot. Their further claim is that the suit land being ancestral could have not been bequeathed by way of a will and rather each co-sharer has right to inherit the same on the death of owner thereof, Shri Med Ram. Mr. According to them they are in physical possession of the suit land on the spot. Their further claim is that the suit land being ancestral could have not been bequeathed by way of a will and rather each co-sharer has right to inherit the same on the death of owner thereof, Shri Med Ram. Mr. Kanwar, learned counsel has, however, vehemently disputed the ancestral nature of the suit land, as according to him, no documentary evidence is available at this stage to establish all characteristics of ancestral property. He has relied upon Para 292 of Hindu Law and Usage by Mayne’s 50th Edition, which provides that the property inherited by a person from a direct male ancestor not exceeding three degrees higher than himself is ancestral property. The plaintiffs have placed reliance on the ‘Aks Shazra Nasab Malkaan’ (pedigree table), which prima-facie reveals that the parties on both sides have inherited the suit land from their grand-father, Kanshi Ram. The inheritance, therefore, prima-facie is from a direct male ancestor exceeding three degrees higher than themselves. Therefore, at this stage, it is difficult to believe that the suit land is not ancestral. Otherwise also, the plaintiffs only intend that the defendant should not alienate, encumber, transfer or change the nature of the suit land in any manner whatsoever during the pendency of the suit. They have not sought the interim relief to the effect that he should be restrained from causing interference therein. The defendant, as such, has every right to use the suit land to the extent of the same is in his possession. However, to allow him to alienate, encumber or dispose of and even change the nature of the suit land in any manner whatsoever during the pendency of the suit would amount to multiplicity of litigation and also result in other legal complications of like nature, which may not be in the interest of the parties and also in fair play, equity and justice. Therefore, while concurring with the findings recorded by learned lower appellate Court that prima-facie a case is made out in favour of the plaintiffs-respondents and the balance of convenience also lie in their favour, it would not be improper to affirm the order under challenge and dismiss this petition. 9. For all the reasons hereinabove, this petition fails and the same is accordingly dismissed. Pending applications, if any, shall also stand disposed of. 9. For all the reasons hereinabove, this petition fails and the same is accordingly dismissed. Pending applications, if any, shall also stand disposed of. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone.