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2017 DIGILAW 830 (HP)

Sita Ram v. Madan Lal

2017-07-24

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. 1. The present petition under Article 227 of the Constitution of India is directed against the impugned order, dated 10.11.2016, in CMA No. 12/14 of 2016, passed by the learned District Judge, Bilaspur, affirming the order, dated 2.7.2016, passed by the learned Civil Judge (Junior Division) Bilaspur, in Civil Miscellaneous Application No. 39/6 of 2016 in Civil Suit No. 23/1 of 2016, titled Sita Ram and Another vs. Madan Lal, with a prayer to set aside the same and allow the application preferred by the petitioners/applicants under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. 2. Brief facts giving rise to the present petition are that petitioners/plaintiffs (hereinafter referred to as ‘plaintiffs) have maintained a suit for permanent prohibitory injunction restraining the respondent/defendant (hereinafter referred to as ‘defendant’) from causing any interference in the suit land comprising Khasra No. 1164/1, measuring 46 sq. mts. situated in Up Muhal, Bilaspur (Lakhanpur) Pargana and Tehsil Sadar, District Bilaspur and dispossessing the plaintiffs from the suit land, otherwise then in due course of law i.e. by putting any material of construction etc. in the suit land and raising construction during the pendency of suit. It is averred in the petition that plaintiffs are residents of Up Muhal Bilaspur (Lakhanpur) Pargana and Tehsil Sadar, District Bilaspur and are in possession of the suit land and the defendant is also resident of the same village. The defendant claims himself to be owner of the suit land and has obtained a decree for possession from the Civil Court and has filed execution petition for getting possession of the suit land, which is pending, in the learned Court below. On 26.1.2016, when the defendant stacked a truck of bricks near the suit land for raising construction over the same and also given threatening to dispossess the plaintiffs from the suit land. In written statement as well as reply filed, the suit as well as the application resisted and contested on the grounds of maintainability, estoppel and locus standi etc. It is further averred that plaintiffs have claimed adverse possession in earlier suit, which is ignored by the Civil Court and the decree was passed against the plaintiffs and that decree attained finality. Neither the defendant collected construction material nor intends to make any construction. It is further averred that plaintiffs have claimed adverse possession in earlier suit, which is ignored by the Civil Court and the decree was passed against the plaintiffs and that decree attained finality. Neither the defendant collected construction material nor intends to make any construction. The execution petition is pending in the Civil Court and after taking possession, the defendant will use the land. The application under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure, was maintained by the applicants/plaintiffs in the present suit for ad-interim order and the same was dismissed. Consequent thereupon, the appeal was also dismissed. 3. Learned counsel appearing on behalf of the petitioners has argued that there is no reason to reject the application of the applicants/plaintiffs, as the respondent/defendant has no right to take forcible possession of the suit land except by legal process i.e. till the time decree is executed. The plaintiffs rights are required to be protected from the respondent, therefore, the present petition is required to be allowed. On the other hand, learned counsel appearing on behalf of the respondent has vehemently argued that there is nothing on record to suggest that the plaintiffs/petitioners are taking possession over the suit land without due process of law and the execution petition is pending adjudication, the plaintiffs/petitioners could have raised their claim, if any, in execution petition before the competent Court of law and the suit as well as application is misconceived. He has further argued that the order of the learned Courts below dismissing the application is as per law. 4. From the record and after hearing learned counsel appearing on behalf of the parties, as also perusing the judgment passed by the learned lower Appellate Court, in para-12 whereof, the learned lower Appellate Court, has held as under: "(i) The present respondent Madan Lal and Others persons namely Bimla Devi, Urmila Devi, Maya Devi and Soma Devi had filed Civil Suit No. 100/1 of 2005, titled as Madan Lal vs. Sita Ram and Others, which was decreed by the Civil Judge (Jr. Division), Bilaspur, on 22.8.2012. Division), Bilaspur, on 22.8.2012. (ii) Civil Appeal No. 40 of 2012 was filed by the present appellant Sita Ram and Devku Devi in this Court against the said judgment and decree passed in Civil Suit No. 100/1 of 2005 which was dismissed on 31.12.2012 whereby the decree for possession of suit land passed in favour of Madan Lal etc. against Sita Ram and Devki Devi is confirmed by this Court. (iii) Sita Ram and Devku Devi had also filed RSA No. 214 of 2013-G against the judgment Civil Appeal No. 40 of 2012 as well as in Civil Suit No. 100/1 of 2005 which is also dismissed by Hon’ble High Court of Himachal Pradesh. (iv) The judgment passed in RSA No. 214 of 2013 passed by Hon’ble High Court of Himachal Pradesh on 29.7.2013 is final as the judgment further not assailed by Sita Ram and Devku Devi. (v) Madan Lal etc. had already filed execution of judgment and decree passed by Civil Judge (Jr. Division), Bilaspur in Civil Suit No. 100/1 of 2005 which is confirmed by this Court as well as Hon’ble High Court of Himachal Pradesh as discussed above." 5. In the instant case, the petitioners/plaintiffs have averred that they are in possession upon the land in suit. In order to prove their prima facie case, they have brought on record, jamabandi for the year 2007-2008, pertaining to the suit land and have also placed on record copy of judgment, dated 31.12.2012 of learned lower Appellate Court and judgment dated 29.7.2013. From the perusal of both these judgments, it is clear that in both the cases, appeal filed by the plaintiffs was dismissed. It is averred by the plaintiffs that they are in possession of the suit land, but there is nothing on record placed by the plaintiffs to show that the defendants are interfering in the suit land. The documents which have been placed on record shows that it is the respondent in whose favour balance of convenience lies and in case injunction is granted in favour of the plaintiffs, then it will be the non-applicant/ respondent, who will suffer irreparable loss and injury, which cannot be compensated in terms of money. 6. The documents which have been placed on record shows that it is the respondent in whose favour balance of convenience lies and in case injunction is granted in favour of the plaintiffs, then it will be the non-applicant/ respondent, who will suffer irreparable loss and injury, which cannot be compensated in terms of money. 6. At this time, after taking into consideration the fact that the findings of the learned Court below is upheld by the learned lower Appellate Court, for the reason contained in the impugned judgment, dated 10.11.2016, finds mentioned in para-14 and 15 of the judgment, this Court finds that the findings recorded by the learned Courts below are after appreciating the facts, law and evidence to its true perspective. The balance of convenience and prima facie has rightly been considered by the learned Courts below. This Court finds that the plaintiffs have otherwise a remedy available to him to move the executing Court for protecting his right till he is dispossessed, in accordance with law, therefore, the present petition is misconceived. Otherwise also, the jurisdiction under Article 227 of the Constitution of India, is not required to be exercised in the present case, as the order passed by the learned Courts below are as per law and after appreciating the facts, which have come on record to its true perspective. The learned Courts below have rightly come to the conclusion that the prima facie and balance of convenience does not lie in favour of the plaintiffs in the present petition. 7. In view of what has been stated hereinabove, the present petition succeeds and the same is accordingly dismissed. No order as to costs. Pending applications, if any, also stands disposed of.