Atma Ram (deleted Vide Order Dated 30 08 2016) v. Chaman Lal
2018-08-23
SURESHWAR THAKUR
body2018
DigiLaw.ai
JUDGMENT Sureshwar Thakur, J. - The instant appeal is directed against the verdict recorded, upon, Civil Appeal No. 36/2003 by the learned Additional District Judge, Una, whereunder, he reversed the verdict recorded, upon, Civil Suit No. 117/I of 2000, by the learned Sub Judge 1st Class, Amb, District Una, and, rendered a decree of permanent prohibitory injunction, vis-a-vis, the plaintiffs, and, against the defendants qua the suit khasra numbers. 2. Briefly stated the facts of the case are that the plaintiffs had filed a suit with averments that the suit land is jointly owned by the parties along with other cosharers. The suit land is in exclusive hissadari possession of plaintiffs along with their mother and sister. They were previously non-occupancy tenants under Prem Singh etc. The suit land adjoins P.W.D. road and is valuable. The plaintiffs are having exclusive hissadari possession as a result of private arrangement. The defendants are in exclusive possession of land allotted to them by way of arrangement. The defendants have threatened to change nature by raising construction and have also threatened to dispossess plaintiffs from the suit land. They are not competent to raise construction till partition takes place. Hence the suit. 3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objection qua cause of action, suit being bad for non joinder of necessary parties and estoppel etc. The joint character of suit land is not disputed. The revenue entries showing exclusive hissadari possession in the name of plaintiffs are wrong which were effected by revenue staff in an illegal manner in connivance with plaintiffs. The parties and other co-sharers are joint tenants under Prem Singh etc., the erstwhile owners. Some of the tenants had acquired proprietary rights. The possession of the parties is joint. It is admitted that suit land is situated adjacent to PWD road. It is denied that defendants are having exclusive hissadari possession over the land allotted to them in arrangement. The plaintiffs have also raised shed over portion of land. It is denied that defendants have threatened to raise construction. It is also disputed that defendants want to change nature of the suit land. 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.
It is denied that defendants have threatened to raise construction. It is also disputed that defendants want to change nature of the suit land. 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 to the relief of injunction?OPP. 2. Whether plaintiffs have no cause of action to file suit?OPD. 3. Whether suit is bad for non joinder of parties?OPD. 4. Whether plaintiffs are estopped from fling the suit?OPD. 5. Whether suit is barred u/s 41(h) of Specific Relief Act?OPD. 6. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/respondents herein. In an appeal, preferred therefrom, by, the plaintiffs/respondents herein, before the learned First Appellate Court, the latter Court allowed, the, appeal, and, reversed 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 12.04.2015, 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 an injunction can be granted in favour of a co-sharer against the other cosharer, without proving and establishing any overact? 2. Whether a cosharer can injunct the other cosharer from enjoyment of joint character of suit land? 3. Whether the entry of Hissadari possession which is in dispute, is legally sufficient to grant a decree for injunction? 4. Whether the judgment and decree of learned 1st Appellate Court is vitiated on account of misconstruction and misinterpretation of oral as well as documentary evidence? 5. Whether the appropriate remedy is of partition, amongst the co-sharers, when possession of co-sharer is in dispute? Substantial questions of Law No.1 to 5: 8.
4. Whether the judgment and decree of learned 1st Appellate Court is vitiated on account of misconstruction and misinterpretation of oral as well as documentary evidence? 5. Whether the appropriate remedy is of partition, amongst the co-sharers, when possession of co-sharer is in dispute? Substantial questions of Law No.1 to 5: 8. Before proceeding to mete, an, adjudication, upon, the above formulated substantial questions of law, it is deemed imperative, to, bear in mind, that vis-a-vis, the jointly recorded suit property, inter se, the parties at contest, qua hence, thereon, the apt jointly recorded suit khasra numbers, rather enjoining application thereon, the hereafter trite principles of law (a) qua each of the coowner holding unity of title, and, community of possession, vis-a-vis, every parcel of the jointly recorded suit property; (b) any holding, of, exclusivity of possession, of, any part of the jointly recorded suit property or khasra numbers, by any of the co-owners, being construable, to be, his holding rather constructive/symbolic possession thereof, even, vis-a-vis, the other co-owners; (c) none of the jointly recorded coowner being vested with any indefeasible rights, for putting, any parcel, of, the jointly recorded property, to his exclusive use nor his being entitled to qua therewith hence seek, a, decree for injunction, against, the other ousted recorded co-owners, (d) for theirs being hence precluded, to obviate any concert qua apt exclusive appropriation, vis-a-vis, any portion of the undivided suit khasra numbers, by the errant co-owner, (e) till partition, of, the jointly recorded suit property, hence occurs, by metes and bounds. 9. Having culled out, the, afore trite principles of law or the apt ingredients, (a) vis-a-vis, the jurisprudential concept, of, co-ownership, it is hereafter deemed incumbent, to also look, for the apt documentary evidence, and, hence, make unearthings therefrom qua it unfolding any echoing, vis-a-vis, the reflections borne in the apt revenue record, rather, enjoying a presumption of truth, hence, standing eroded, (b) erosion whereof would occur, upon, the predecessors-in-interest, of, the parties at contest, one Likhu, and, one Hari Dass, reflected as Gair Maurusi in Ex. D-1 to Ex. D-3, under the apt landowners, making a valid partition of the suit khasra numbers, (c) and, thereafter the apt therewith specific parcels, of, lands hence standing physically allotted, visa-vis, each, and thereafter, in consonance therewith, hence, specific khasra numbers thereof, standing, depicted in the apt revenue record. A perusal of Ex.
D-1 to Ex. D-3, under the apt landowners, making a valid partition of the suit khasra numbers, (c) and, thereafter the apt therewith specific parcels, of, lands hence standing physically allotted, visa-vis, each, and thereafter, in consonance therewith, hence, specific khasra numbers thereof, standing, depicted in the apt revenue record. A perusal of Ex. D-1 to D-3, rather discloses qua the respective predecessorsin-interest, of, the litigating parties, being jointly recorded, as gair maurusi, in the apt column, of cultivation, under, the apt landowners, (d) with, further ascription therein qua in theirs holding, the apt suit khasra numbers as gair maurusi, under the apt landowners, their apt holdings being in commensuration, vis-a-vis, their shareholdings therein. (e) Nonetheless, the learned First Appellate Court, appears to overlook, all the aforesaid pronouncements, and, appears to draw, a conclusion qua the dismemberment, of, the apt joint status, as, gair maurusi, vis-a-vis, the suit khasra numbers, of, the predecessors-in-interest, of, the litigating parties, rather occurring, and, thereafter it proceeded to decree, the plaintiffs'' suit, for permanent prohibitory injunction, against, the defendants, and, vis-avis, the suit khasra numbers. It appears that the aforesaid conclusion, is, misfounded, and, appears to stand drawn, from, mutation(s) embodied in Ex. D-1, (f) reading whereof does not, however, reflect that the predecessors-in-interest, of, the contesting parties, being therein reflected, to, stand vested with apt proprietary rights, vis-a-vis, suit khasra numbers, nor any underlinings are borne therein qua the predecessors-ininterest of the contesting parties, after, a valid partition standing effected inter se them, of the joint suit khasra numbers, theirs being physically allotted, specific parcels, of, the hitherto undismembered suit property. 10. Even if, the apt vestment, of, statutory proprietary rights, hence, upon, a recorded gair maurisi, vis-a-vis, the suit khasra numbers, does not, enjoin, any, recording(s) or attesting(s), of mutation in respect thereof, by the apt Revenue Officer, significantly it being automatic, (a) nonetheless, the attestation of a valid mutation, in sequel, to a valid dismemberment, of the joint estate rather was imperative, (b) wherefrom, a conclusion could be drawn of the hitherto undismembered joint estate, hence, getting validly dismembered, by metes and bounds. Reiteratedly when the aforesaid factum, remains not unfolded, by any mutation borne in Ex.
Reiteratedly when the aforesaid factum, remains not unfolded, by any mutation borne in Ex. D-1, thereupon, it is to be concluded, qua the suit property being joint, inter se, the predecessors-in-interest of the litigating parties, also, it being joint inter se the contesting litigants, (c) and, thereupon none of the co-owners being entitled, to, appropriate to his exclusive use, any part, of the undivided suit property, nor his being entitled to seek any decree of injunction, standing pronounced against the purportedly errant defendants. 11. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court hence being not based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has excluded germane and apposite material from consideration. Accordingly, all the substantial questions of law, are, answered in favour of the appellants/defendants, and, against the plaintiffs/respondents. 12. In view of the above discussion, the instant appeal is allowed and in sequel, the, judgment and decree rendered by the learned First Appellate Court, upon, Civil Appeal No. 36 of 2003 is set aside, whereas, the judgment and decree rendered by the learned trial Court upon Civil Suit No. 117/I of 2000 is 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.