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2017 DIGILAW 419 (HP)

Naresh Kumar v. Shanti Devi

2017-04-26

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. - By way of this appeal, the appellants have challenged the judgment and decree, passed by the Court of learned District Judge, Kinnaur in Civil Appeal No. 34 of 2004, dated 19.2.2005, vide which learned appellate Court while allowing the appeal, so filed by the present respondents (hereinafter referred to as ''the plaintiffs'', for short), reversed the judgment and decree, passed by learned trial Court and restrained the present appellants (hereinafter referred to as ''the defendants'', for short) from obstructing the path connecting the house of plaintiffs, situated over the suit land with the general village path by issuing a decree of permanent and mandatory injunction against the defendants. 2. Brief facts, necessary for the adjudication of the present appeal, are that the plaintiffs filed a suit for permanent prohibitory injunction on the ground that the plaintiffs and defendants were recorded as co-owners over the suit land comprised in Khata Khatauni No. 163 min 55 khasra No. 610 measuring 0-04-62 hectare situated in Mauza Jarind, Pargana Sarahan, Tehsil Rampur, District Shimla, H.P. As per the plaintiffs, Jai Singh was common ancestor of both the parties, who left behind legal heirs, namely, Ram Kali, Murtu Devi, Debli Devi, Ganu Devi, Ishwar Singh, Vasu Dev, Badri Dass and Inder Singh. As per the plaintiffs, the suit land was undivided on the spot, over which legal heirs of late Shri Jai Singh had equal shares, on which two houses were also existing, which were in possession of plaintiffs as well as defendants. It was further mentioned in the plaint that most of the land was lying vacant on the spot and there was a passage, one for the village and another for the road from the said houses. As per the plaintiffs, about two weeks before filing of the suit, defendant No. 1 had started cutting the vacant land with the intention to raise structure over the same with the help of other defendants. Defendant No. 1 had also cut the passage with the intention to create obstruction for the plaintiffs in reaching the road as well as to the plaintiffs'' house, which was the only passage from the spot. FIR was also lodged to this effect by the plaintiffs at Police Station, Jhakri. Defendant No. 1 had also cut the passage with the intention to create obstruction for the plaintiffs in reaching the road as well as to the plaintiffs'' house, which was the only passage from the spot. FIR was also lodged to this effect by the plaintiffs at Police Station, Jhakri. As per the plaintiffs, defendants were trying to dispossess the plaintiffs from the suit land, as the same was valuable land and as plaintiffs were poor persons, defendants were trying to dominate them with malafide intentions. It was further the case of the plaintiffs that they had requested the defendants not to cut the path, raise any structure and interfere in their peaceful possession over the suit land, till partition in accordance with law. however, defendants were not heeding to their requests and threatening to sell the disputed property. It was further mentioned in the plaint that the land in issue had not been partitioned amongst the co-sharers and the same was joint amongst the co-sharers and defendants had no right to raise any structure/construction over the same or dispossess the plaintiffs from the same, till the suit land was partitioned. It was also mentioned in the plaint that defendants had recently encroached upon the suit land and raised pillar for raising structure beyond his share, for which defendant No. 1 had no right to do so, till the suit land was partitioned. It was on these basis that the suit was filed by the plaintiffs praying that the defendants be restrained from raising any structure and also be restrained from digging pits over the common passage to raise any pillar etc. and also from dispossessing the plaintiffs from the suit land till the suit land was partitioned, in accordance with law. 3. A decree for mandatory injunction was also prayed for directing the defendants to restore the land in its original position and demolish the un-authorized structure, constructed by defendant No. 1. 4. By way of written statement filed by the defendants, claim of the plaintiffs was disputed. It was mentioned in the written statement that entries in Jamabandi qua the possession of Khasra No. 610 were not correct since, the said Khasra number is in possession of heirs of Inder Singh, Badri Dass and Jai Dev. 4. By way of written statement filed by the defendants, claim of the plaintiffs was disputed. It was mentioned in the written statement that entries in Jamabandi qua the possession of Khasra No. 610 were not correct since, the said Khasra number is in possession of heirs of Inder Singh, Badri Dass and Jai Dev. It was further mentioned in the written statement that in fact the possession thereupon was in accordance with the spot Tatima prepared by Halqua Patwari, wherein Khasra No. 610/1 measuring 0-01-69 was shown in possession of defendant No. 1 and Khasra No. 610/2 was shown in possession of plaintiffs and possession of Khasra No. 610/3 was shown in possession of defendants No. 8 and 9. It was further mentioned in the written statement that the share inherited by the heirs of Vasudev stood relinquished by them in favour of defendant No. 1 and plaintiffs in fact were occupying Khasra No. 610, in excess of their share for which they were not entitled. It was further mentioned in the written statement that though there were houses over the said Khasra number, but the plaintiffs were having possession qua only three rooms in a single storey and one kitchen over Khasra No. 610/2. There was vacant land on both sides of their house. It was also mentioned in the written statement that defendant No. 1 was having four rooms in single storey under construction along with one kitchen which was almost complete over Khasra No. 610/1 and portion in possession of defendants No. 8 and 9, comprised in Khasra No. 610/3 was vacant except one single storied kitchen. It was further mentioned in the written statement that there was one passage which was below the edge of Khasra No. 610 towards Khasra No. 609 and said passage passes through Khasra No. 609 and the same was open and had not been obstructed by anyone and said passage had nothing to do with the land of defendant No. 1, comprised in Khasra No. 610/1. It was also mentioned in the written statement that though the land had not been partitioned by metes and bounds, the suit land was separately in occupation of the parties as had been mentioned in para-1 of the written statement. On this basis, claim of the plaintiffs was denied by the defendants. 5. It was also mentioned in the written statement that though the land had not been partitioned by metes and bounds, the suit land was separately in occupation of the parties as had been mentioned in para-1 of the written statement. On this basis, claim of the plaintiffs was denied by the defendants. 5. By way of replication, plaintiffs reiterated their claim and also mentioned therein that legal heirs of Vasu Dev had never relinquished their shares in favour of defendant No. 1 nor plaintiffs were occupying more than their share, out of the suit land. It was also mentioned in the replication that the spot Tatima had been got prepared by defendant No. 1 of the disputed land, in collusion with the Patwari. 6. On the pleadings of the parties, the following issues were framed by learned trial Court on 16.12.2003: 1) Whether defendant No. 1 is raising any construction over land comprised in Khasra No. 610, as alleged? OPP 2) If issue No. 1 is proved in affirmative, whether land denoted by Khasra No. 610/1 has been in possession of defendant No. 1, as alleged? OPD 3) If issue No. 2 is proved in affirmative, whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP 4) Relief. 7. Learned trial Court vide its judgment and decree dated 27.4.2004 dismissed the suit of the plaintiffs. Learned trial Court held that though the pleaded case of the plaintiff was that the suit land was in possession of the co-sharers, however, at the time of leading evidence, plaintiffs had tried to demonstrate that the suit land was only in the possession of the plaintiffs. Learned trial Court also held that revenue documents placed on record by the parties demonstrated that the suit land was shown in possession of the plaintiffs as well as one Shanti Devi and Vasu Dev. Learned trial Court held that entry of the land was shown as ''gair mumkin abadi''. It further held that though the presumption of truth was attached to the entries incorporated in Jamabandi, but in view of the pleadings, as were contained in para-5 of the plaint, it could be held to be admitted by the plaintiffs that the suit land was in possession of all the co-sharers. It further held that though the presumption of truth was attached to the entries incorporated in Jamabandi, but in view of the pleadings, as were contained in para-5 of the plaint, it could be held to be admitted by the plaintiffs that the suit land was in possession of all the co-sharers. Learned trial Court held that though PW-2 Shanti Devi, PW-3 Tikkam Ram and PW-4 Lachhu Ram in their affidavits filed in support of their examination-in-chief had asserted that it was only plaintiffs, who were in possession of the suit land but, in their cross-examination, they admitted that the defendants were also in possession of the same. On these basis, it was held by learned trial Court that though the suit land was joint interse the parties, but they were in possession over the separate parcel of it, specifically denoted by Khasra Nos 610/1, 610/2 and 610/3. Learned trial Court held that it appeared that defendant No. 1 had raised construction over that piece of land, which was earlier in his possession and as such the act of the defendants in raising construction over the same could not be said to be having legal consequences. Learned trial Court also held that though plaintiffs had pleaded about existence of a path over the suit land, but they were not specifically able to demonstrate its existence by tendering any evidence. Learned trial Court also held that PW-1 Kewal Ram, the Halqua Patwari, during his cross-examination had stated that the path existing on the spot passes in between Khasra No. 609 and 610 and that the same was still in existence and was being used by the parties. Learned trial Court also held that it had come in the statement of PW-2 Shanti Devi that 2 1 /2 - 3 feet path was in existence on the spot and even PW-3 Tikkam Ram had admitted that there was a path passing through the boundaries of Khasra No. 609 and 610 and the same was still in existence. On these basis, it was held by learned trial Court that it could not be held that there was any path over the suit land, as pleaded by the plaintiffs, which was obstructed by the defendants. On these basis, it was held by learned trial Court that it could not be held that there was any path over the suit land, as pleaded by the plaintiffs, which was obstructed by the defendants. Learned trial Court also held that there was nothing in the statements of DW-1 Ishwar Singh and DW-2 Molak Ram to demonstrate that defendant No. 1 has usurped more share than his actual share in the suit land and had obstructed the alleged path. On these basis, learned trial Court dismissed the suit, filed by the plaintiffs. 8. In appeal, findings returned by learned trial Court have been set aside by learned appellate Court. Learned appellate Court held that learned trial Court did not take into consideration the ground realities while denying the relief, as was prayed by the plaintiffs. Learned appellate Court held that it was admitted case of the defendants that plaintiffs were owners in possession of the house, situated in a portion of the suit land, which had collapsed as a result of heavy rain in the year 1977. Learned appellate Court held that as plaintiffs were owners in possession of a house situated on the suit land, necessarily, there had to be an approach to the said house from the general village path. It further held that it was not the case of the defendants that house of the plaintiffs abutted the general village path. Learned appellate Court further held that plaintiffs were not required to tender in evidence sketch of path connecting their house with the general path, since defendant No. 1 was said to have encroached upon the path in question. It further held that learned trial Court had not correctly considered the evidence of PW-1 Kewal Ram, Patwari, who in fact was deposing in collusion with defendant No. 1 and who in his cross-examination had stated that he had prepared the field map Ext. PW1/A, as per the situation at the spot. Learned appellate Court further held that it could not be believed that plaintiffs had no approach to their house from the common village path, from the very beginning. PW1/A, as per the situation at the spot. Learned appellate Court further held that it could not be believed that plaintiffs had no approach to their house from the common village path, from the very beginning. It further held that house of plaintiffs had collapsed as a result of heavy rain in the year 1977 and thereafter, plaintiffs were said to have constructed a new house and defendant No. 1 wanted the plaintiffs to approach the general path from their house through stairs of defendants No. 8 and 9. Learned appellate Court held that it was the own case of the defendants that they were not on good terms with the plaintiffs and further field map Ext.PW1/A prepared by PW-1 qua Khasra No. 610 was not correct. Learned appellate Court also held that defendant No. 1 had dug up portion of a suit land and had lowered the level thereof, causing obstruction to the approach of the plaintiffs to their house from general village path. It further held that general village path connecting the house of defendant No. 1 had not been reflected in field map Ext. PW1/A, which clearly demonstrated that general village path had not been at a distance of 2-3 feet from the house of plaintiffs and beyond the house of defendant No. 1. Learned appellate Court further held that after dispossessing the plaintiffs from a portion of the site of their old house and encroaching upon the path of the plaintiffs, defendant No. 1 states that there is path for the plaintiffs through the field of Krishanu, whereas Krishanu was said to be the owner of a field in front of the house of the plaintiffs. Learned appellate Court further held that it was nowhere the case of defendant No. 1 that he had no approach to his new house situated in the suit land from the general village path, whereas plaintiffs had consistently stated that defendant No. 1 had obstructed path, which connected their house with the general village path. On these basis, it was held by learned appellate Court that plaintiffs were entitled to relief of permanent injunction against the defendants restraining them from obstructing path connecting the house of the plaintiffs situated in the suit land, with the general village path. On these basis, it was held by learned appellate Court that plaintiffs were entitled to relief of permanent injunction against the defendants restraining them from obstructing path connecting the house of the plaintiffs situated in the suit land, with the general village path. Learned appellate Court, thus, while allowing the appeal filed by the plaintiffs, reversed the findings returned by learned trial Court and restrained defendants from obstructing the path connecting house of the plaintiffs situate in the suit land with the general village path by way of issuance of permanent and mandatory injunction. 9. The Judgment and decree dated 19.2.2005 in Civil Appeal No. 34 of 2004, so passed by learned appellate Court stands assailed by the appellants/defendants in this appeal. The present appeal was admitted by this Court on the following substantial questions of law on 22.8.2005: a) Whether respondent/plaintiffs have failed to plead alleged right of use of path over joint land and therefore, he is not entitled to any relief? b) Whether instead of filing suit for injunction, the plaintiffs were required to file suit for partition which is more speedy and efficacious remedy and therefore, discretionary relief of injunction could not be claimed? 10. I have heard learned counsel for the parties and gone through the record of the case as well as judgments and decrees, passed by both the courts below. 11. I will deal with both the substantial questions of law, on which this appeal had been admitted independently: Substantial question of law No. 1 12. The suit filed by the plaintiffs was for permanent prohibitory injunction for restraining the defendants from raising any structure, digging pits over common passage, raising pillars and dispossessing the plaintiffs from the suit land and further for restraining the defendants from selling the suit land till partition of the same, in accordance with law and for grant of mandatory injunction directing the defendants to restore the land in its original position after demolishing the unauthorized structure found on the same. While learned trial Court dismissed the suit of the plaintiffs, the same was decreed by the learned appellate Court to the extent that defendants were restrained from obstructing the path connecting the house of the plaintiffs, situated over the suit land, with the general village path, by issuance of a decree of permanent prohibitory and mandatory injunction against the defendants. While learned trial Court dismissed the suit of the plaintiffs, the same was decreed by the learned appellate Court to the extent that defendants were restrained from obstructing the path connecting the house of the plaintiffs, situated over the suit land, with the general village path, by issuance of a decree of permanent prohibitory and mandatory injunction against the defendants. A perusal of the plaint demonstrates that there are no specific pleadings in the same with regard to the alleged path which was existing on the suit land connecting the house of the plaintiffs with the common village path. In order to appreciate this same, para-3 of the plaint is being reproduced hereinunder: "That the land comprised in Khata-Khatauni No. 163 min 55 Khasra No. 610, measuring 0-04-62 hectare situated in Mauza Jarind, Pargana Sarahan, Tehsil Rampur, District Shimla, H.P. is undivided on the spot and which are in equal shares of all eight legal heirs of late Sh. Jai Singh. It is pertinent to mention here that adjoining this land there is two houses which are in the possession of plaintiffs and as well as defendants. Most of the land lying vacant on the spot and there is passage one for village another for road from the houses." 13. A perusal of the said para demonstrates that pleadings therein with regard to passage leading to the village from the house are, vague. Para 1 and 3 of the written statement demonstrate that defendants had categorically mentioned therein that though there was one passage, same is below the edge of Khasra No. 610, comprised in Khasra No. 609 and that the said passage was passing through Khasra No. 609, but the same was open and had not been obstructed by anyone and in fact the said passage had nothing to do with the land of defendant No. 1, comprised in Khasra No. 610. It was further denied in the written statement by the defendants that they had either cut any passage, as was alleged, or they were interfering in any portion of the land, occupied by the plaintiffs. In replication, the stand reflected in para-3 of the same by the plaintiffs was that in fact possession over Khasra No. 610, as per Jamabandi on the spot of defendant No. 1 was being reflected, in collusion with Patwari, who had prepared the spot Tatima of the disputed land. 14. In replication, the stand reflected in para-3 of the same by the plaintiffs was that in fact possession over Khasra No. 610, as per Jamabandi on the spot of defendant No. 1 was being reflected, in collusion with Patwari, who had prepared the spot Tatima of the disputed land. 14. Now in this background, on the perusal of the documents, placed on record by the plaintiffs to prove its case, it is evident from the perusal of the same that the plaintiffs have failed to demonstrate existence of any specific path over the suit land connecting their house with the common village path by tendering in evidence any site plan of the same. Though, learned appellate Court has come to conclusion that PW-1 had deposed in connivance with defendant No. 1, but one fails to understand as to how the said conclusion has been arrived at by the learned appellate Court. In fact PW-1 was examined at the behest of the plaintiffs. Similarly, the cross-examination of PW-2 Shanti Devi demonstrates that she admitted the suggestion given to her that there was a path 2 1 /2 - 3 feet wide, which passes through the fields. Cross-examination of PW-3 Tikkam Ram also demonstrates that this witness also admitted that from the fields of Krishanu, there was a path 2 1/2 - 3 wide, which passes from the boundaries of Khasra No. 610 and 609. Now, when the plaintiffs were alleging the existence of path over the suit land, which according to the plaintiffs, was being obstructed by the defendants, onus was upon the plaintiffs to have had established on record the existence of the said path by brining on record some cogent evidence, from which such inference could be drawn by the Court. However, there is nothing on record, from which it can be inferred that there existed a path, as was being claimed by the plaintiffs, which was being obstructed by the defendants. In other words, neither existence of the path nor obstruction being caused upon the same by the defendants, stood proved by the plaintiffs. However, there is nothing on record, from which it can be inferred that there existed a path, as was being claimed by the plaintiffs, which was being obstructed by the defendants. In other words, neither existence of the path nor obstruction being caused upon the same by the defendants, stood proved by the plaintiffs. While this fact was correctly appreciated by learned trial Court, learned appellate Court misread the evidence placed on record and erred in coming to the conclusion that there was no necessity for the plaintiffs to have had filed any sketch of the alleged path, which according to them was being interfered with by the defendants. Similarly, perusal of the pleadings also demonstrates that plaintiffs having failed to plead the right of use of path over the joint land and have also miserably failed to demonstrate the existence of any such path, which was being interfered with by the defendants, as was the case put forth by the plaintiffs. The conclusion, to the contrary, drawn by the learned appellate Court, in my considered view, is not sustainable in law, as the said conclusions is based on conjectures and surmises, rather than on the basis of pleadings and evidence on record. Not only this, even otherwise, a perusal of the judgment passed by learned appellate Court demonstrates that the findings, which have been returned by the trial Court in favour of the plaintiffs are based on conjectures and surmises and not on the facts of the case, which is apparent from the fact that while returning the findings of the fact that defendants were interfering with the path, which was allegedly connecting the house of plaintiffs with the village common path, the findings which have been returned by learned appellate Court are that the plaintiffs were having house over the suit land, therefore, it is but to be assumed that there was a path connecting the said house with the common village path, as was the case put forth by the plaintiffs and that the same was being interfered by the defendants. 15. I am afraid the Court of law cannot pronounce its judgment on surmises ,as the findings which have to be returned by the Court of law, are to be based on facts and to be supported by evidence, which has been led on record by the parties concerned. 16. 15. I am afraid the Court of law cannot pronounce its judgment on surmises ,as the findings which have to be returned by the Court of law, are to be based on facts and to be supported by evidence, which has been led on record by the parties concerned. 16. It is not understood that in the absence of there being anything substantive on record to demonstrate that there was path on the suit land, which was being obstructed by the defendants, how decree of injunction, was passed by the learned appellate Court, was to be executed. It was not sufficient for the plaintiffs to have had made vague allegations in the plaint that there was a path connecting their house over the suit land to the village path and the same was being interfered with by the defendants. It was incumbent upon the plaintiffs to have had demonstrated as to which was that path, which existed on the suit land connecting their house with the common village path and what was the obstruction being caused upon the said land by the defendants. However, plaintiffs have not been able to prove and demonstrate the same. Accordingly, in this view of matter, the judgment and decree, passed by learned appellate Court in Civil Appeal No. 34 of 2004 is not at all sustainable in the eyes of law and in fact, learned appellate Court has erred in setting aside the well-reasoned judgment and decree, passed by learned trial Court in Civil Suit No. 75-1 of 2003, on 27.4.2004. The substantial question of law No. 1 is decided accordingly. Substantial question of law No. 2. 17. As far as the present substantial question of law is concerned, now it is only of academic interest, especially in view of the fact that this Court has already held while deciding substantial question of law No. 1 that the plaintiffs were not able to prove their case and hence, learned appellate Court had erred in decreeing the suit, so filed by the plaintiffs. However, as far as maintainability of the suit filed by the plaintiffs is concerned, in my considered view, as it is not a disputed fact that the plaintiffs are in fact co-sharers over the suit land, they had a right to file a suit praying for injunction, in case any right of there was being infringed by any of the co-sharer. Filing a suit for injunction or praying the appropriate authority for the purpose of partition, cannot be said to be a ground, on which the plaintiffs could have been debarred from filing the suit for injunction. However, as I have already held that while deciding the substantial question of law No. 1, in case plaintiffs were not able to prove that either their existed any path connecting their house to the common village path and the same was being interfered with by the defendants, judgment and decree was granted in their favour by the learned appellate Court, was not sustainable in the eyes of law. 18. In view of my findings returned above, this appeal is allowed and the judgment and decree passed by learned appellate Court in Civil Appeal No. 34 of 2004 is set aside, whereas the judgment and decree, passed by learned trial Court in civil suit No. 75-1 of 2003 is hereby affirmed. No order as to costs.