Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1242 (HP)

Sudesh Rani v. Y. p. Verma

2018-07-06

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff''s suit for rendition, of, a decree for declaration, as well as for, rendition of a decree for permanent prohibitory injunction qua the suit khasra number(s), was, hence decreed. 2. Briefly stated the facts of the case are that the the suit land as detailed in the plaint is recorded to be owned and possessed by various co-sharers including the predecessor-in-interest of the plaintiff Smt. Asha Devi. Smt. Asha Devi was owner to the extent of share in the joint land. The plaintiff purchased land comprised in khasra No. 244, 245, 246 and 265, out of the suit land, measuring 412 square metres from Smt. Asha Devi vide sale deed No. 231 of 20.4.1987 and vide another sale deed No.232 of 20.04.1987. He purchased the land comprised in Khasra No.263 to the extent of share measuring 49 sq. meters with all rights, title and interest. It has been alleged that the suit land is still joint between the parties. There exists a path over the part of the suit land passing from Khasra Nos. 261 and 256 to be called as path which provides passage to the plaintiff in Khasra No.265. The path leads down to Khasra No. 246 which is a joint land, therefore, the defendants had no right, title or interest to change nature of the path or to raise ay construction thereon. It has been averred that the path is being used by the plaintiff and prior to him the predecessor-in-interest for egress and ingress, openly, peacefully and continuously as a right. The path is being used for the last more than 40 years and thus the right has matured into legal right of easement. It has been alleged that the defendants have started raising construction in such manner that the level of the path adjoining to the land of the plaintiff in Khasra No.246 is being raised in such a manner that it will cause obstruction in the path in question and the plaintiff will suffer irreparable loss. It has been alleged that the defendants have started raising construction in such manner that the level of the path adjoining to the land of the plaintiff in Khasra No.246 is being raised in such a manner that it will cause obstruction in the path in question and the plaintiff will suffer irreparable loss. It has been averred that on 19.8.1998, the plaintiff visited the spot and found that the defendants have collected bricks and construction material when defendant No.2 Sudesh Rani revealed that they will level the path and construct blind wall on the path to prevent the plaintiff for his egress and ingress tot he land in Khasra No.246. Hence the suit. 3. The defendants contested the suit and filed written statement, wherein, they have submitted that the suit land has already been partitioned vide document dated 4.8.1936 in between the predecessors-in-interest of the plaintiff and the defendants and other co-owners, which was complete and effective partition by metes and bounds. The partition has been depicted in site plan which was signed by the parties and registered with Sub Registrar, the then Raja of Bhagat State Solan. It has also been averred that the possession of the portion of the suit land was taken by the then co-owners and since then they are continuously and uninterruptedly in possession of those portions shown by different colours in the site plan. It has also been submitted that at the time of bandobast jadid except for some minor discrepancies, the land depicted in the site plan had been denoted by various Khasra numbers in the misal hakiyat and later jamabandis. It has also been averred that the plaintiff purchased the land through two sale deeds from Asha Devi but the sale deed No.232 of 20.4.1997 is illegal and void which has already been challenged in another civil suit whereby it has been alleged that Smt. Asha Devi had never been in possession of land comprised in Khasra No. 263, the portion of which has been purchased by the plaintiff. It has been submitted that the predecessor-ininterest of the plaintiff could sell the land which has fallen to her share on account of succession from her husband late Sh. Amar Nath, who was a original signatory to the partition deed as well as the site plan. It has been denied that the plaintiff is entitled to hold and enjoy the entire property. Amar Nath, who was a original signatory to the partition deed as well as the site plan. It has been denied that the plaintiff is entitled to hold and enjoy the entire property. It has been submitted that the path had fallen in the share of Amar Nath, predecessor-in-interest of Ahsa Devi and the present plaintiff has duly been described and depicted in the partition deed and site plan and the plaintiff is entitled to the said path only which is shown in the green colour and of the width of four feet and the plaintiff cannot claim on any other land. It has also been submitted that the path in Khasra No.261 and 251 is not joint and is distinct path going upto khasra No.256 as shown in black colour in the site plan. It has been denied that the path in question is being used for the last more than 40 years. The rest of the averments made by the plaintiff has been stated to be wrong, hence, prayer is made for dismissal of the plaintiff''s suit. 4. The plaintiff filed replication to the written statement of the defendant(s), wherein, he denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the path in question is a part of joint property and the defendants have no right, title or interest to change the nature and user of the plaintiff, as alleged?OPP. 2. Whether the plaintiff in the alternative has right of user of alleged path by way of prescription as well as by way of necessity, as alleged?OPP 3. Whether the suit property has been partitioned by regd. Document dated 4.8.1937, as alleged?OPD. 4. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom, by, the defendants/appellants herein, before the learned First Appellate Court, the latter Court dismissed, the, appeal, and, affirmed the findings recorded by the learned trial Court. 7. Now the defendants/appellants 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. 7. Now the defendants/appellants 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, this Court, on 18.4.2013, admitted the appeal instituted by the defendants/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the findings of the court below are perverse, based on misreading of oral and documentary evidence and pleadings of the parties, particularly, documents PX-1, PX-2 as also the statements of PW-1 to PW-3 and DW1 to DW-3 and the sale deeds Ex.P-2 and P-3. 2. Whether on the material on record and the proper construction of the documents, particularly, the partition deed dated 04.08.1936 and the sale deeds P-2 and P-3 wherein it was established that the joint status of the suit property stood extinguished and the estate of Rai Bahadur Bishambhar Nath was separated amongst his four sons which was reflected in the jamabandis from 1936 onwards and the finding that Asha Rani had 1/4th share in the suit property, particularly, Khasra No.263 is sustainable in law? 3. Whether the findings of the court below are based on wrong assumptions and ignoring material evidence of partition and severance to the joint status of the property by instrument of partition dated 04.08.1936 which was duly registered and duly recorded in the revenue records to which presumption of truth is attached? Substantial questions of Law No.1 to 3: 8. The core controversy, engaging the parties at contest, is, rested upon the suit property, being validly partitioned, by metes and bounds, on 04.08.1936, amongst the apt hitherto co-owners. In making the aforesaid propagation, reliance was placed, upon, Ex.DW2/A, wherein, occurs a specific recital qua the suit land, in the year 1936, upon, its being partitioned, by metes and bounds, qua, thereafter possession of specific parcels, of the apt partitioned joint estate, being handed over, to the erstwhile joint owners, factum whereof is disclosed therein, to be borne in the plan attached therewith. However, the aforesaid recitals, borne, in Ex.DW2/A, qua, after occurrence, of, dismemberment of the joint estate, hence the apt possession(s), of, the dismembered portion(s) of the hitherto undivided suit property, being handedover to the respective co-owners concerned, and, the further apt recited therein factum, of, delivery of possession thereof, being, reflected, in the plan attached therewith, are, per se false and specious, given, the site plan averred therein, to, stand appended with Ex.DW2/A, rather remaining unadduced in evidence. With falsity, hence, ingraining, the factum probanadum, pronounced in EX.DW2/A, whereas, on anvil whereof, the defendants propagate a claim, of the suit khasra numbers, suffering dismemberment, in the year 1936, (i) and, also had sought, to rebut the presumption of truth, of, the apt entries, borne in Ex.PX-1, entries whereof, carry reflections of the suit land yet extantly remaining undismembered, (ii) whereas, with the aforesaid evidence, for hence scuttling, the vigour of the presumption truth, carried by the apt entries borne, in, Ex.PX-1, wherein, the suit land, is, reflected to be jointly, owned and possessed by the respective co-owners, rather being concluded to be infirm, (iii) thereupon, the presumption of truth garnered by the apt entries borne, in, Ex. PX-1, hence remain undislodged, and, obviously also acquire conclusivity, and, also constrain this Court, to, conclude qua the plaintiff adducing firm evidence, qua the suit land remaining undivided. Further sequel thereof, is that with the undivided suit property/joint suit property, being hence ingrained, with the underlying tenets, of each of the co-owners therein hence holding community of title and community of possession, even with respect to the suit khasra numbers, and, even with respect to the suit path, till a valid partition occurs inter se them, hence, the plaintiff, is, concluded to hold a right compatible, with, the rights of the defendant, to, hence trudge thereon. 9. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court, have not excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the respondent/plaintiff, and, against the appellants/ defendants. 10. While rendering the findings, the learned first Appellate Court as well as the learned trial Court, have not excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the respondent/plaintiff, and, against the appellants/ defendants. 10. In view of the above discussion, there is not merit in the present Regular Second Appeal and it is dismissed accordingly. In sequel, the judgements and decrees rendered by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.