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2017 DIGILAW 929 (HP)

Sees Ram v. Mehar Singh

2017-08-11

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The plaintiff instituted a suit for permanent prohibitory injunction for restraining the defendants from raising construction besides changing the nature of the suit land borne in Khasra No. 1281/1244/870, measuring 9 biswa 3 biswansi. The Plaintiff's suit was dismissed by the learned trial Court. The Plaintiff being aggrieved therefrom, preferred an appeal bearing Civil Appeal No. 11-FT/13 of 2005/2004, before the learned first Appellate Court, appeal whereof also suffered an alike fate. Codefendant No. 1 Mehar Singh also assailed the judgment and decree pronounced by the learned trial Court by preferring an appeal therefrom before the learned first Appellate Court, wherein, he contended that with the learned trial Court accepting the report of the Local Commissioner, borne in Ex.PW3/A wherewith stood appended statements of the contesting parties with communications therein “of” in a takshim khangi, the residential houses located upon the suit property falling respectively to the shares of one Narain Dass and one Mehar Singh, thereupon, it was befitting for the learned First Appellate Court to order that on partition thereof occurring, his share therein being protected besides in commensuration thereof physical possession thereto, be delivered to him. However, the aforesaid contention reared by co-defendant Mehar Singh upon Civil Appeal No. 12-FT/13 of 2005/2004 stood rejected by the learned first Appellate Court. However, Mehar Singh has not assailed the judgment pronounced by the learned First Appellate Court upon Civil Appeal No. 12-FT/13 of 2005/2004, whereby it stood dismissed. Contrarily, Sees Ram, who instituted Civil Appeal No. 11-FT/13 of 2005/2004 before the learned First Appellate Court, whereby he assailed the judgment and decree pronounced by the learned trial Court, is aggrieved by a common judgment therewith pronounced by the learned First Appellate Court upon Civil Appeal No. 11-FT/13 of 2005/2004, hence, through the instant appeal concerts to beget its reversal. 2. 2. Briefly stated the facts of the case are that the suit was filed to restrain defendants Mansa Ram and Narain Dass from dispossessing the plaintiff from or raising any construction on or changing the nature of the land comprised in Khata/Khatauni No. 51/65 min, Khasra No. 1281/1244/870, measuring 9 biswa 3 biswansi situated in Mauza Darwa, Sub Tehsil Kuthar, District Solan, H.P. The plaintiff averred that the land in suit was in joint possession of parties and that defendants No. 1 and 2 had started construction, which if allowed to continue would result not only in change in nature of land but would also result in ousting the plaintiff from best piece of land. 3. Defendants No. 1 and 2 filed written statement challenging the maintainability of suit on grounds of non joinder of parties, form of suit and locus standi of plaintiff. They denied that the plaintiff was in possession of the suit property and that on the other hand it was in their possession by virtue of a formal settlement cum family parties. The further pleaded that there existed on old house on the suit land constructed by defendant No. 1 Mansa Ram. At the settlement the house alongwith vacant land was allotted to Mansa Ram and Narain Dass. A two storeyed house was allotted to plaintiff. Defendants pleaded that they had every right to renovate/reconstruct the house. 4. Defendants No. 3 and 4 prayed that the suit be decreed, whereas, defendant No. 1(a) Mehar Singh pleaded in his written statement that earlier he also used to live in the disputed old house with his family. The house was agreed to be reconstructed with his right to be determined as per his share. The house has been reconstructed by Narain Dass during the pendency of the suit. Mehar Singh pleaded that he has a right to seek partition of the said house. 5. The plaintiff/appellant herein filed replication to the written statement of the defendants/ respondents, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 6. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP 2. Whether the plaintiff has no locus standi to file the present suit? OPD 3. 6. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP 2. Whether the plaintiff has no locus standi to file the present suit? OPD 3. Whether the suit is not maintainable, as alleged? OPD 4. Whether the suit is bad for non joinder of necessary parties? OPD 4A. Whether the suit land has been coming in joint possession and there has not been any formal partition between the parties, as alleged? OPP 4B. Whether the formal settlement-cum-family partition had been taken place between the parties, and the defendants are exclusive owners in possession of the suit land and house, as alleged? OPD 1 & 2 5. Relief. 7. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/appellant herein. In appeals, preferred therefrom by the plaintiff/appellant herein as also by defendant No. 1A Mehar Singh, before the learned First Appellate Court, the latter Court dismissed both the appeals and affirmed the findings recorded by the learned trial Court. 8. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal before this Court, wherein he assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 23.06.2008, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the judgment and decree of the Courts below is perverse, based on misreading of oral and documentary evidence and inadmissible evidence which has vitiated the findings? 2. Whether the judgment of Additional District Judge is vitiated for non decision of the application under Order 41, Rule 27, CPC and the procedure followed not warranted by law more particular when the appeal of the appellant Sees Ram has not been adjudicated or determined on merits at all and with the dismissal of the appeal of Mehar Singh, both the appeals have been dismissed. 3. Whether the findings of the Courts below are vitiated for non consideration of documentary evidence P1 to P3 and revenue record Exts. 3. Whether the findings of the Courts below are vitiated for non consideration of documentary evidence P1 to P3 and revenue record Exts. P-4 to P-4, the report of the Local Commissioner and the statement recorded by PW-3, which has vitiated the findings being based on inadmissible evidence? 4. Whether the appeal in question is maintainable? Substantial questions of Law No. 1 to 4: 9. A perusal of the common verdict pronounced by the learned first Appellate Court respectively upon Civil Appeal No. 12-FT/13 of 2005/2004 and upon Civil Appeal No. 11-FT/13 of 2005/2004, instituted there-before respectively by Mehar Singh, defendant No. 1A and by plaintiff Sees Ram, appellant herein, discloses of the learned first Appellate Court in opening paragraph thereof delving into the impugning contentions reared there-before by Sees Ram, wherein, he had assailed the imputation of credence by the learned trial Court upon the report of Local Commissioner borne in Ex.PW3/A alongwith therewith appended statements of the litigants concerned, wherein occurs a display of Sees Ram acquiescing qua occurrence of a Taksim Khangi in respect of the suit property, besides displays occur therein of his in the taksim khangi not being allotted any share in the suit property. Contrarily, only one Narain Dass and Mehar Singh being allotted shares therein. Consequently, it is not open for the learned counsel appearing for the appellant, to contend that none of the apposite contentions in respect of validity of Ex.PW3/A or contentions in respect of the probative worth of the statements appended therewith “of” the respective litigants concerned not being adjudicated upon nor he can contend that dismissal of appeal of Mehar Singh bearing Civil Appeal No. 12-FT/13 of 2005/2004 along with civil appeal instituted by Sees Ram, hence vitiating the verdict pronounced by the learned first Appellate Court upon Civil Appeal No. 13-FT/13 of 2004/2005, reiteratedly for want of any findings upon the apposite grounds of appeal reared before it being rendered thereon. 10. 10. Be that as it may, the learned first Appellate Court has apparently accepted the report of the Local Commissioner borne in Ex.PW3/A alongwith therewith appended statements of the litigants concerned, statements whereof stand respectively signatured by them, wherein a display occurs of the suit property being subjected to “taksim khangi” also Sees Ram not being allotted any share in the suit property, thereupon, with the acquiescence of Sees Ram in respect of his being not entitled to any share in the suit property, renders his further claim “for” on its partition a share being allotted to him also his claim for a decree of permanent prohibitory injunction being pronounced in respect thereof, to evidently stand not grooved in any sound tangible evidence. Nowat with co-defendant No. 1A, Mehar Singh who rather holds a share therein not assailing the verdict recorded by the learned first Appellate Court, when stands construed with the acquiescence's aforesaid of Sees Ram, acquiescence's whereof upsurge from his signatured statement appended with the report of the Local Commissioner, wherein he articulates his holding no share in the suit property, begets an inference that the findings recorded by the learned first Appellate Court upon Civil Appeal No. 12-FT/13 of 2004/2005 acquiring conclusive and binding force. 11. 11. Even though, the learned counsel appearing for the appellant has contended with much vigour that the reflections borne in Ex.P-1, exhibit whereof is a certified copy of an order recorded on 19.01.1993 by the learned trial Court, order whereof stood rendered during the course of its holding conciliatory proceedings inter se the parties at contest, wherein a display occurs of the respondents being permitted to raise construction of their houses within the four corners of the collapsed building, “subject to the rights of the plaintiff/ applicant, if any, as may be decided in the main suit and that in case any finding comes that the suit property is joint and its is required to be partitioned, then the defendants will not raise any objection to the building site in question to be apportioned as per shares of the parties in the joint property”, being not appreciated by the learned First Appellate Court, whereas, thereupon, the plaintiff, in the construction raised upon the suit land with the conditional permission of the court under the latter's orders comprised in Ex.P-1, hence held a share therein also was enjoined on its partition to stand declared to be entitled to a share therein besides commensurate allotment of physical possessions therein. However, the aforesaid espousal is rudderless in the evident facet of this Court drawing all the aforestated invincible inferences. 12. Moreover, non rendition, if any, by the learned first Appellate Court of an adjudication upon an application preferred before it under the provisions of Order 41, Rule 21 of the CPC by the appellant herein/plaintiff also does not vitiate the judgment and decree pronounced by the learned first Appellate Court, apparently, when the proposed pieces of documentary evidence concerted to, with the leave of the Court, hence, adduce into evidence not appertaining to the suit property rather appertaining to proceedings inter se the litigating parties for partition of joint land. Consequently, with the documents proposed to be with the leave of the first Appellate Court hence adduced as evidence not appertaining to the subject matter at hand nor being congruous vis-a-vis the subject matter borne in the instant appeal also when hence adduction thereof was not just and essential for settling findings on issues apposite to the suit property, contradistinctivities whereof also renders any non renditions upon an application cast under the provisions of Order 41, Rule 27 CPC to not vitiate the decision rendered by the learned first Appellate Court upon both the appeals preferred there-before. 13. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Accordingly, all the substantial questions of law are answered in favour of the respondents and against the appellant. 14. In view of above discussion, there is no merit in the instant appeal, which is accordingly dismissed. Consequently, the impugned judgments and decrees rendered by both the learned Courts below are maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back.