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2016 DIGILAW 2169 (HP)

Bhagi Ram v. Sobha Ram

2016-10-05

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Heard. 2. In this application, the respondent (defendant in the trial Court) has been sought to be restrained from changing the nature of the suit land or creating any charge thereon as well as selling or encumbering the same in any manner whatsoever. 3. The subject matter of dispute in the present lis is land measuring 00-06-00 bighas, a portion of land measuring 05-08-19 bighas entered in Khewat/Khatoni No. 179/189 bearing Kh. No. 650/82 situate in Mohal Katipari, Tehsil Padhar, Distt. Mandi, H.P. Admittedly, the land in dispute is joint of the parties to the suit along with other co-sharers and one of the co-sharers, namely, Jitu (DW-2) has sold his share i.e. 00-06-00 bighas to defendant. The record further reveals that the defendant is in exclusive possession of land so purchased by him from aforesaid Jitu. The plaintiff is also a co-sharer in the suit land. He has sought the decree for permanent prohibitory injunction as well as mandatory injunction against the defendant on the ground that the later started raising construction over the suit land without getting his share separated out of the same. Also that he has raised construction of a temporary shed in front of the house and courtyard of the plaintiff forcibly and thereby made encroachment over the land and courtyard of the house of the plaintiff. 4. The defendant, when put to notice, has contested the suit on the grounds, inter alia that the suit land is un-partitioned and rather the same stands partitioned amongst the co-sharers in a family settlement. By way of family settlement, every co-sharer came into possession of the land falling in his respective share. The predecessor-in-interest of the defendant aforesaid Jitu was therefore in separate possession of the land, the defendant purchased from him. Now, it is the defendant who is in exclusive possession of the land in dispute. It is also pointed out that each and every co-sharer has raised construction over the suit land in his respective share. The plaintiff has also constructed his house, which according to the defendant, situates in valley side and distantly located from the house of the defendant. 5. The trial Court after framing issues and recording evidence as well as hearing the parties on both the sides has decreed the suit vide judgment and decree dated 19.11.2015. The plaintiff has also constructed his house, which according to the defendant, situates in valley side and distantly located from the house of the defendant. 5. The trial Court after framing issues and recording evidence as well as hearing the parties on both the sides has decreed the suit vide judgment and decree dated 19.11.2015. Learned lower appellate Court has affirmed the judgment and decree passed by the trial Court and dismissed the appeal vide judgment dated 7.1.2016 under challenge before this Court in the main appeal. The appeal stands admitted for final hearing. 6. Learned counsel representing the appellant/plaintiff has vehemently argued that the suit land, being joint of the parties to the suit and that of all other co-sharers, irrespective of the fact that the suit has been dismissed by both the Courts below, the defendant deserves to be restrained from raising construction over the suit land and also alienating or encumbering the same in any manner whatsoever. 7. Mr. Vinod Thakur, Advocate, learned counsel representing the defendant has urged that neither prima-facie case exists in favour of the plaintiff nor balance of convenience lies in his favour as according to him both Courts below have non-suited the plaintiff on appreciation of evidence in its right perspective. It is also urged that even equity also leans in favour of the defendant, who is houseless and residing with his family in a tin shed (temporary shed), constructed over the suit land. 8. The requirement of law to grant the nature of the relief sought in the application is existence of prima-facie case in favour of the person seeking such relief, balance of convenience lies in his favour and that in the event of the relief sought is declined, the comparative mischief likely to be caused thereby would be greater to him as compared to the opposite party. 9. Having regard to the rival submissions and also the record of this case, it would not be improper to conclude that neither of the above said essential ingredients warranting the grant of relief sought exists in this case for the reason that the defendant admittedly has purchased the land from one of the co-sharer Sh. Jitu. The plaintiff, while in the witness box has himself admitted that the defendant is in possession of the land, the possession whereof was handed over to him by aforesaid Jitu. Jitu. The plaintiff, while in the witness box has himself admitted that the defendant is in possession of the land, the possession whereof was handed over to him by aforesaid Jitu. Not only this, to a suggestion that the defendant is not in possession of the land more than his share i.e. 6 biswas, the plaintiff has expressed his ignorance. However, the witnesses examined by the plaintiff have stated in one voice that all co-sharers are in possession of the land in their respective shares and they use to cultivate the same. 10. Both the Courts below have appreciated the evidence, as has come on record, in its right perspective and dismissed the suit. No doubt, the appeal against the judgments and decrees passed by both the Courts below is pending disposal in this Court, however, the pendency of the appeal would not substantiate the claim of the plaintiff, rather allowing the application and granting the relief as sought would result in miscarriage of justice to the defendant. The comparative mischief likely to be caused thereby shall be greater to him as compared to the plaintiff because photographs Ext. P-1 to P-3, produced in evidence by the plaintiff itself, amply demonstrate that the defendant is residing in a tinshed. The partition of the suit land in a family settlement may not be legal and valid as there is no evidence to show that after effecting partition by the co-sharers amongst themselves, the rapat to that effect was entered with the Patwari concerned in Rojnamcha Wakiati so that the partition could have been given legal shape. However, the co-sharer seems to be in exclusive possession of the suit land to the extent of their respective shares and cultivating the same separately. Though, this Court is not allowing the defendant to raise construction over the suit land, however, even if any construction is raised by him during the pendency of the appeal, the same will be at his own risk and cost and ultimately if the plaintiff succeeds in this appeal and such construction is found to be raised over the land, which on partition of the joint land under due process of law, falls in his share, the defendant shall have no right, title or interest in the construction so raised by him during the pendency of the appeal in this court. However, the nature of the relief sought in this application cannot be granted for the reason that neither there exists a prima-facie case in favour of the plaintiff nor balance of convenience lies in his favour and even allowing the application, the comparative mischief likely to be caused would be greater to the defendant as compared to him. Since the defendant is residing with his family in a tin shed, therefore, balance of convenience lies in his favour and not in favour of the plaintiff. 11. The ratio of the judgment of this Court in Joginder Singh & others vs. Suresh Kumar and ors., reported in Latest HLJ 2015 (HP) 260, is distinguishable in the given facts and circumstances because in that case there was no evidence suggestive of that the parties were in exclusive possession of the suit land and the parties on both sides were found to have already constructed their respective houses and the defendant wanted to raise the construction of another house. It is in such a peculiar situation, the defendant in that suit was restrained from raising any construction over the suit land without seeking the partition thereof. Such, however, is not the position in the case in hand. 12. Therefore, I find no merit in this application and dismiss the same with the above observations.