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2018 DIGILAW 1305 (HP)

Hukam Singh v. Khajan Singh

2018-07-13

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 plaintiffs'' 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 a suit for permanent prohibitory injunction was filed by the plaintiffs against the defendants on the allegations that they are owners of the suit land comprised in Khasra No. 43, 53, 64, 70, 83, 87/3, 100, 104 and 209, measuring 16.13 bighas, situated in Village Dali, Pargana and Tehsil Sadar, District Bilaspur, H.P., along with their brother Hukam Singh (defendant No.1), who has been born to his father from another mother. As far as, defendants No.2 and 3 are concerned, they have got no right, title or interest in the suit land. In fact, after the death of their father, mutation with regard to his property bearing No. 211 was attested, in their names along with defendant No.1, as well as, other legal heirs, on 16.10.2003. The defendants, who are forceful persons have started giving open threats to cut the valuable trees from the suit land, besides changing its nature by raising construction. Although, they were not allowed to raise construction thereon, but they managed to cut few trees, numbering 10 from the suit land, of various species. As far as the timber of those trees is concerned, the plaintiffs did not allow them to remove the same. The cause of action accrued on 1.12.2003, when the defendants cut the trees from the suit land and did not accede to the request of the plaintiffs. Hence the suit. 3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections, inter alia, maintainability, cause of action, estoppel etc. On merits, although, it was admitted that Shri Prabhu R|am has died, but it was pleaded that during his life time, he had executed a Will, on 9.12.1994, in favour of defendants No.2 and 3 which he could not register with the office of Sub-Registrar, Sadar, due to his ailment. However, the same had been produced before Sub Registrar, Sadar on 3.10.2003, under Section 40 and 41 of the Indian Registration Act, which is pending for decision/finalization. However, the same had been produced before Sub Registrar, Sadar on 3.10.2003, under Section 40 and 41 of the Indian Registration Act, which is pending for decision/finalization. Despite that, A.C. Sadar, without caring for the pendency of the aforesaid application and taking cognizance of the Will, in a haste manner, attested the mutation in the names of plaintiffs and replying defendant No.1, in an illegal manner. Finding no other alternate, they filed an appeal against the above said illegal mutation in the Court of learned Sub Divisional Collector, Sadar and the operation of mutation was stayed. Unless and until, that appeal is decided, on the basis of Will, in question, defendants have got every right, title or interest in the suit land. Other allegations were denied. 4. The plaintiffs filed replication to the written statement of the defendant(s), wherein, they 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 plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed for?OPP. 2. Whether the suit in present form is not maintainable?OPD. 3. Whether the plaint does not disclose any cause of action and deserves to be dismissed U/O 7, Rule 11 CPC? OPD. 4. Whether the plaintiffs are estopped by their act, conduct and acquiescence as alleged?OPD. 5. Whether Shri Prabhu Ram has executed any valid will on 9.12.2994 in favour of defendants No.1 and 2, as alleged?OPP. 6. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/respondents 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, have instituted the instant Regular Second Appeal, before, this Court, wherein they assail 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 02.07.2008, 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. When the appeal came up for admission, this Court, on 02.07.2008, 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 dispute of title was pending before various authorities with respect to succession to the estate of late Sh. Prabhu Ram, especially the Will on the basis of which defendants/appellants were claiming exclusive right to the suit property, have not both the Courts below committed grave error of law and jurisdiction in recording cursory and mechanical findings under Issue No.4, framed by the trial Court, which are likely to cause grave prejudice to the defendants-appellants in such pending proceedings? 2. Whether the title of plaintiffs regarding the suit property was under determination before the competent Civil Court, revenue authorites where appeal against mutation of succession was under challenge and proceedings for partition by plaintiffsrespondents and proceedings under Registration Act regarding the registration of Will before the competent authority, have not both the Courts below acted in erroneous and perverse manner to grant decree for permanent prohibitory injunction against the defendants-appellants presuming the plaintiffs-respondents coowners with the defendants-appellants? Substantial questions of Law No.1 and 2: 8. On demise of one Prabhu Ram, his estate opened for succession, and, under the apposite mutation of inheritance, the deceased''s estate was mutated qua all his legal heirs, who are the legal combatants hereat. However, the defendants propounded, a, Will of deceased Prabhu Ram, and, on anvil thereof, espoused qua theirs, on demise of the aforesaid, being exclusively entitled, to inherit his estate, and, concomitantly strived to rest, a conclusion, that the jointness of the suit property, being, hence severed, and the plaintiffs, being not entitled, to a decree of permanent prohibitory injunction. However, the defendants propounded, a, Will of deceased Prabhu Ram, and, on anvil thereof, espoused qua theirs, on demise of the aforesaid, being exclusively entitled, to inherit his estate, and, concomitantly strived to rest, a conclusion, that the jointness of the suit property, being, hence severed, and the plaintiffs, being not entitled, to a decree of permanent prohibitory injunction. However, the apt recorded disaffirmative concurrent findings thereon, rather acquire vigour, in, the face of the learned counsel appearing, for the respondents/plaintiffs, placing on record a decision rendered by the learned District Judge, Bilaspur, upon, Civil Appeal No. 19/13 of 2015, in a lis inter se parties, holding, an apparent analogity therein, vis-a-vis, the parties hereat, and, when he further contends qua its acquiring conclusivity, (i) and, whereunder, the similar herewith factum of valid, and, due execution, of, a testamentary disposition, by one Prabhu Ram, and, as propounded hereat by the defendants, has been concluded, to be not proven to be validly, and, duly executed. Consequently, the suit property, is, to be concluded to be, as, reflected in Ex.PA, jamabandi appertaining to the year 1967, hence joint inter se, the parties at contest, and, when the jointness of the suit property, inter se, the legal combatants hereat, (ii) embodies therein, the, trite cannon, of, each of the co-owners holding unity of title and community of possession, vis-a-vis, every inch of the joint suit land. Thereupon, till a valid dismemberment of the joint suit land hence occurs, no co-owner holds any right to change the nature of joint suit land, except with the consent of other co-owners. 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 respondents/plaintiffs, and, against the appellants/ defendants. 10. 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. 10. 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.