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2018 DIGILAW 1243 (HP)

Anil Kumar 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 permanent prohibitory injunction qua the suit khasra number(s), was, hence decreed. 2. Briefly stated the facts of the case are that the suit land is recorded to be jointly owned and possessed by one Shri Ranjan Sharma, Smt. Asha Devi and others and the plaintiff has purchased the share of Smt. Asha Devi in the suit land, which is joint property of its owners and after purchasing the share of Asha Devi, the plaintiff moved an application for partition of the joint land in the Court of Assistant Collector 1st Grade, Solan, which was allowed and mutation No. 1102 was attested in pursuance thereof. However, such partition proceedings were challenged in an appeal before the Court of Sub Divisional Collector and in appeal the partition proceedings have been set aside and case of partition has been remanded back to the court of A.C. 1st Grade, Solan. Defendants No.1 to 4, have purchased share in the suit land vide sale deeds No.268 and 271 of 23.05.1995, though, the defendants No.1 to 4, are non agriculturists. The suit land is recorded to be jointly owned and possessed except 195 Sq. meters which has been separately shown only on account of partition which partition has already been set aside and as such revenue entries qua khasra No.2654/263, 2655/263 and 2553/263, measuring 195 sq. meters are wrong, illegal and suit land is still joint. The defendants No.1 to 4 have filed a civil suit against the plaintiff seeking injunction so as to restrain the plaintiff from raising construction on the land comprising Khasra No.2553/263, measuring 48 sq. meters on the plea that there was some family settlement, whereas, no such family settlement has taken place between the parties and the said family settlement is result of concoction and fabrication and even such family settlement has not been acted upon. meters on the plea that there was some family settlement, whereas, no such family settlement has taken place between the parties and the said family settlement is result of concoction and fabrication and even such family settlement has not been acted upon. Defendants No.1 to 4 have no right, title or interest to change nature, raise construction or cut trees from the suit land and even regarding the sale deeds on the basis of which the share in the suit land was purchased by defendants No.1 to 4, the proceedings under Section 118 of the H.P. Tenancy and Land Reforms Act were initiated by the State of H.P., in the court of District Collector, Solan, as the defendants No.1 to 4 are non agriculturists and under the provisions of the aforesaid Act they could not have purchased the share in the suit land and the share purchased by defendants No.1 to 4 have been confiscated in favour of the State of H.P. by the District Collector, Solan, but in appeals the cases have been remanded back. The defendants are now threatening to raise construction the suit land forcibly despite protest of the plaintiff. 3. The defendants contested the suit and filed written statement, wherein, they have pleaded that the suit is liable to be stayed under section 10 of the CPC, as the matter in issue is also directly and substantially in issue in a previously instituted suit pending in the court of learned Sub Judge 1st Class, Solan, which suit is for declaration and permanent injunction for declaring the sale deed vide which the plaintiff has purchased the share in the suit land from Smt. Asha Devi pertaining to land comprising khasra No. 263/1 to be illegal, void as the suit land is owned and possessed by defendants No.1 to 4 on the basis of a registered document of 4.8.1936 which has been acted upon throughout by the parties and their predecessors an said Smt. Asha Devi was having no share in the land comprising in khasra No.263/1. It has been averred that the suit land has been completely partitioned between the predecessors of the parties on the basis of document dated 4.8.1936 accompanied by tatima duly signed by the predecessors of the parties. It has been stated that the plaintiff has purchased firstly 412 sq. It has been averred that the suit land has been completely partitioned between the predecessors of the parties on the basis of document dated 4.8.1936 accompanied by tatima duly signed by the predecessors of the parties. It has been stated that the plaintiff has purchased firstly 412 sq. meters of land, comprising Khasra No. 244, 245, 246 and 265 which shown in the possession of Smt. Asha Devi but lateron he got a fraudulent sale deed registered qua Khasra No.263 which had been challenged in the previous suit as Smt. Asha Devi was having no title in the land comprising Khasra No.263. It is also averred that the partition which was got fraudulently by the plaintiff by filing proceedings against the dead person has been set aside and the same is pending in the court of A.C. 1st Grade, Solan. It has been stated that the defendants are exclusive owners in possession of the land purchased by them through the sale deeds Nos. 268 to 271 dated 23.5.1995 and it is denied that the defendants are non agriculturists. It is also denied that the suit land is joint. It is admitted that a civil suit has been filed by the defendants No.1 to 4, against the plaintiff which is pending before the learned Sub Judge 1st Class, Solan. It is denied that the deed of partition is manipulated and fabricated document and that question of violation of H.P. Tenancy and Land Reforms Act has no bearing on the present suit which is under consideration before the Collector Solan. It is denied that the defendants are causing any damage to the suit land and threatening to raise construction but stated that during July, 2000 on account of rains the retaining wall of Red Cross road collapsed causing the partial collapse of the house of the defendants regarding which letter was written to the Municipal Committee, Solan but no action was taken by M.C. Solan and thus the defendants had to repair the collapsed retaining wall as it was causing extensive damage to the property of the defendants. 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. 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 defendants No. 1 to 4 have no right, title or interest to change the nature and to raise the construction over the suit land, as alleged?OPP. 2. Whether the suit is to be stayed under Section 10 CPC, as alleged? OPD. 3. Whether the defendants are owners in exclusive possession of the land purchased by them through sale deeds No.268, 269, 271, 271 of 23.5.1995?OPD 4. Whether the parties and their predecessors-in-interest had completely partitioned their properties through registered document dated 4.8.1936 accompanied by tatima, as alleged? OPD. 5. 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. When the appeal came up for admission, this Court, on 13.08.2007, 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 on issue NO.2 that the suit was not liable to be stayed in view of the fact that RSA No.385 of 2006, Vinay Kumar vs. Yoginder Pal, arising out of civil suit No.24/1 of 1994 of the court of Civil Judge Senior Divisions being pending in the High Court and the trial and decision of the courts below has vitiated? 2. 2. Whether in view of the fact that RSA No. 385 of 2006 being pending in the High Court, the findings that it was not open to the trial court and the District Judge to go beyond the adjudication made in civil suit No.241/1 of 1994 are sustainable when in view of the provisions of Section 10 of the CPC, the suit was liable to be stayed? 3. Whether in view of the fact that the proceedings for resumption under Section 118 of the H.P. Tenancy and Land Reforms Act having not been concluded and the defendant being the lawful owner in possession of the property could be precluded from repairing the same? 4. Whether the decree for mandatory injunction could be granted in favour of the plaintiff from restraining the appellants from repairing the property? Substantial questions of Law No.1 to 4: 8. Civil suit No.241 of 1994, inter se, all herebefore also hence analogous parties, was, apparently instituted prior to the institution of the extant suit, before the learned trial Court. Except the factum of the earlier suit, espousing relief, for rendition of a declaratory decree qua the suit property embodied therein, it, carries thereon suit land, hence, holding analogity vis-a-vis the extantly litigated suit property, and, also excepting the factum, qua, hereat the solitary relief of injunction being asked, for, the lis engaging the parties at contest in the earlier civil suit, and, the extant suit, is, similar. 9. 9. Be that as it may, the aforesaid apt salient analogity, inter se, the previous suit, and, vis-a-vis, the extant suit, (a) except qua the earlier suit, being for rendition, of, a declaratory decree, and, the extant suit being cast, for rendition of a decree for injunction, (b) thereupon, the spirit, vis-a-vis, provisions, borne, in Section 10 of the CPC, is enjoined to be fulfilled, (c) wherewithin a specific interdictory mandate, is encapsulated, against any court proceeding to try a suit, when evidently prior thereto, an apt suit carries, therewithin, an, alike therewith subject matter, or the matter in issue therein, is directly and substantially, in issue, in the subsequently instituted suit, (d) AND the explicit interdictory mandate, borne therein, also essentially requires satiation being begotten, qua (e) of the earlier suit, carrying therewithin a subject matter, directly and substantially, in issue, in the latter suit, as well; (f) causes of action evidently erupting, in contemporaneity with the institution, of, the earlier suit, remaining palpably unembodied therein, whereupon, the further mandate of Order 2, Rule 2 of the CPC, against, the institution of, a, subsequent suit, vis-a-vis, causes of action, hence, erupting, in contemporaneity, vis-a-vis, the institution, of, the earlier suit, would, hence begets its apt attraction. The provisions of Section 10 CPC, and, of, Order 2, Rule 2 of the CPC read as under:- "10. Stay of suit: No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court." Provisions of Order 2, Rule 2 CPC reads a under:- "2. Suit to include the whole claim (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Suit to include the whole claim (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or internationally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or internationally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." Nowat, with the apt statutory mandate(s), hence cast in the provisions, borne in Section 10 of the CPC, and, in Order 2, Rule 2 of the CPC, (i) thereupon, it has to be disinterred, from, readings of the earlier instituted plaint, and, of the extant suit, qua, whether both carry similar causes of action, or, matter(s) in issue, in both hold graphic commonality, or, the matters directly and substantial, in issue, in both suits, also hold commonality, (ii) upon making the apposite guaging, from, the apt pleadings, it is evident that the earlier suit bearing Civil Suit No. 241/1 of 1994, was, cast for rendition of a declaratory decree, (iii) whereas, the extant suit, is cast for rendition of decree for permanent prohibitory injunction, (iv) and, when the relief, for permanent prohibitory injunction is espousable, as, and when the purported jeopardising invasions or infringements, vis-avis, the rights of the aggrieved plaintiffs, upon, suit khasra No.263, hence, commence, by evident overt acts, standing committed thereon, by the defendants, (v) thereupon, when the subsequent suit, carries a relief contradistinct, vis-a-vis, the reliefs, espoused in the earlier suit, (vi) in sequel, when the matter hereat, was never directly or substantial in issue in the earlier suit, (vii) thereupon, it has to be invincibly concluded, that hence, with, the indispensable ingredients, cast in Section 10 of the CPC, not visibly begetting their apt satiation(s), conspicuously, with no evident display hence emerging, of the matters, directly or substantially, in issue, in both suits, being visibly alike, (viii) thereupon, the Court, seized with the latter suit, being not enjoined to stay, the, further proceedings thereon, (ix) even when RSA No. 385 of 2006, as arose from the verdict pronounced in the earlier suit, was, pending adjudication, and, whereon, a, verdict, stands pronounced by this Court, on 6.7.2018. Besides the purported infringements or invasions, upon, the rights of the plaintiff, vis-a-vis, the suit khasra number, when hence apparently occur, subsequent, to the institution of the earlier suit, and, when the apt invasions are proven to be committed, in, apt derogation of the rights of the plaintiff, hence, any non incorporations thereof,, in the earlier suit, of, the relief of injunction, also does not attract, the, embargo constituted under Order 2, Rule 2 of the CPC, thereupon, the extant suit is rendered maintainable. 10. Be that as it may, the learned counsel appearing for the defendants/appellants herein, has contended, that, upon a valid partition of the suit khasra number hence occurring on 4.8.1936, whereunder, the dismemberment of the hitherto suit property, rather occurred, and possession of parcels, of, the dismembered suit property, was handed over to the hitherto co-owners, (i) yet with the evidence on record making a clear demonstration, of the apt purported partition standing not cogently proven, to hence occur, (ii) hence, on anvil thereof, the defendants, cannot contend that the suit property is validly partitioned nor they can contend, that till a valid partition, occurs of the suit khasra numbers, theirs alike other co-owners, holding any compatible rights, except, with apt consent, to, hence make user thereof. Furthermore, when rather proceedings, vis-a-vis the subsequent partition, vis-a-vis, the suit khasra numbers has yet evidently remained unconsummated, thereupon, for want of culmination, of the partition proceedings, it is deemed fit, to, conclude qua the suit khasra number(s) remaining yet unpartitioned, (i) thereupon, till occurrence, of, dismemberment, of the joint estate, none of the co-owners, in the joint land, hence, holds any right to change the nature, of any portion, of the joint estate, except with the consent of the other co-owners, nor can attempt to change the nature of the suit land, by concerting to raise any construction thereon. 11. So far as the contention of the learned counsel appearing for the defendants/appellant qua the proceedings, for, resumption of the land under Section 118 of the H.P. Tenancy and Land Reforms Act, pending adjudication, before the revenue Courts is concerned, the civil court, has no jurisdiction to embark, upon the legality of the aforesaid proceedings initiated, against, the defendants. 11. So far as the contention of the learned counsel appearing for the defendants/appellant qua the proceedings, for, resumption of the land under Section 118 of the H.P. Tenancy and Land Reforms Act, pending adjudication, before the revenue Courts is concerned, the civil court, has no jurisdiction to embark, upon the legality of the aforesaid proceedings initiated, against, the defendants. Moreover, till the conclusion of the aforesaid proceedings before the revenue Courts concerned, the defendants are co-owners along with the plaintiff, vis-a-vis the suit land, and, without the consent of the plaintiff, the defendants have not right to change the nature of the suit land. 12. 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. 13. In view of the above discussion, there is no 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.