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2018 DIGILAW 2029 (HP)

Sunder Lal v. Ravinder Singh

2018-11-20

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the verdict recorded, upon, Civil Appeal No. 54 of 2004 by the learned District Judge, Kinnaur Civil Division at Rampur Bushahr, H.P., whereunder, he reversed the verdict recorded, upon, Civil Suit No. 67-1 of 2003, by the learned Civil Judge, (Junior Division), Rampur Bushahr, and, dismissed the plaintiff's suit. 2. Briefly stated the facts of the case are that the plaintiff filed a suit for permanent prohibitory injunction against the defendant on he averments that his brother Surinder Kumar and himself on 28.10.1998 had purchased 1/10 the share in the land described in Khasra No.1557 measuring 0-31-105 hectare situate in Up Mohal Singla for Rs.25,000/- from Sh. Kesari Dass., Mutation on the strength of sale deed of 28.10.1998 stood sanctioned in favour of the plaintiff and his brother on 2.1.1999. After the execution of sale deed, Shri Kesari Dass had handed over possession of a definite and specific portion of Khasra No.1557 to the plaintiff. Shri Surinder Kumar had relinquished his share in sale deed dated 28.10.1998 in favour of the plaintiff. As such, the plaintiff ha been absolute owner in possession of 1/10th share in the suit property. In field map, the plaintiff had been recorded owner in possession of Khasra No.2872/1557/2/1 measuring 0-03-50 hectare. The plaintiff avers that he had constructed his house in the suit land described in Khasra No.2872/1557/2/1 in February, 2000. It has been pleaded that Shri Kesari Dass had sold a definite and specific portion of Khasra No.1557 to Sh. Tula Ram, Ishwar Lal, Kamla Devi and Shakuntla Devi vide field map of 31.7.1992. Thereafter Shri Ishwar Lal and Kamla Devi had sold their definite entire share in Khasra No.1557 to one Sh. Basant Lal. It is averred that on 20.9.2002, Sh. Basant Lal had sold his definite share of Khasra No.1557 to the defendant. Mutation on the strength of sale deed of 20.9.2002, had been attested in favour of the defendant on 24.9.2002. The defendant is stated to be owner in possession of Khasra No. 1557/1/1 as a result of partition between him, Tula Ram and Shankutla Devi. Mutation of partition in between the defendant, Tula Ram and Shakulta Devi had been attested on 7.10.2002. The defendant is stated to be owner in possession of Khasra No. 1557/1/1 as a result of partition between him, Tula Ram and Shankutla Devi. Mutation of partition in between the defendant, Tula Ram and Shakulta Devi had been attested on 7.10.2002. The defendant was stated to have started construction in his Khasra No. 1557/1/1 and had extended his construction into a portion of Khasra No. 2872/1557/2/1/ as per site plant Ex.PW3/A. The defendant had extended steel bars into a portion of land owned and possessed by the plaintiff. The plaintiff had requested the defendant not to encroach upon the suit land as per field map Ex.PW3/A but without any result. The plaintiff says that plot of defendant abutted NH-22 to the extent of 7 meters. As against this, the defendant had covered area measuring 13 meters abutting NH-22 in the area of Up Mohal Singla. The defendant was sought to be restrained from encroaching upon the suit land by issuance of a decree of permanent prohibitory injunction. 3. The defendant contested the suit and filed written statement, wherein, he had admitted the ownership and possession of the plaintiff upon land bearing Khasra No.2872/1557/2/1. The plaintiff had not completed construction of his house in February, 2000. It had been stated that the plaintiff had started construction of his house in his own land in November, 2002. The plaintiff had started the construction without the sanction of the competent authority. The defendant had stated having purchased khasra No.1557/1/1 from Sh. Basant Lal. The defendant had denied of his having in any way encroached upon Khasra No.2872/1557/2/1. The defendant had averred that the plaintiff wanted access from his house to NH-22 through the land of the defendant. The house of the plaintiff was not directly approachable from NH-22. As against this, the plot and house of the defendant abutted NH-22. When the defendant had refused to provide direct access to NH-22 to the plaintiff, false and frivolous suit had been instituted against him by the plaintiff. The plaintiff was not entitled to any relief much less to the discretionary relief of permanent and prohibitory injunction. 4. The plaintiff filed replication to the written statement of the defendant, wherein, he denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. The plaintiff was not entitled to any relief much less to the discretionary relief of permanent and prohibitory injunction. 4. The plaintiff filed replication to the written statement of the defendant, 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 portion of the land depicted by red ink in the annexed site plan, forms part of Khasra No.2872/1557/2/1, as alleged? OPP. 2. If issue No.1, is proved in the affirmative, whether the defendant is trying to usurp that portion of land, as alleged? OPP. 3. If issue No.2 is proved in the affirmative, whether the plaintiff is entitled to the relief of perpetual injunction, as prayed? 4. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom, by, the defendant/respondent 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 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, this Court, on 15th July, 2005, 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 ld. District Judge has acted illegally by failure to allow application under Order 26, Rule 9 CPC for appointment of Local Commissioner for determination of boundaries and to ascertain the extent of encroachment made by Respondent over land of Plaintiff over the area as recorded against Khasra No.2872/1557/2/1 and thereby he has failed to comply with law as laid down by this Hon'ble Court reported in 2000(1) SLJ 430 and AIR 2003 HP 87 ? 2. 2. Whether the plaintiff having been found to be exclusive owner in Khasra No.2872/1557/2/1 and which fact is clear from Tatima PW1/H and mutation No. Ex.PW1/B and Jamabandi, Ex.PW1/A, therefore, the plaintiff is entitled to relief of declaration that he is owner of this land and decree is required to be passed for removal of encroachment found to have been made by respondent? 3. Whether findings as recorded by learned District Judge are vague and he has failed to exercise jurisdiction for determination of dispute in accordance with law and findings are vitiated on account of misreading and misconstruction of material on record and also for failure to comply with prescribed procedure and law as laid down by this Court? Substantial questions of Law No.1 to 3: 8. A perusal of jamabandi appertaining tot he suit land, and, as embodied in Ex.PW1/A (i) hence makes, a, palpable disclosure qua the suit kahsra number being undivided. Consequently, till occurrence, of, a valid dismemberment of the suit khasra number, thereupto, none of the co-owners holds any absolute indefeasible right, to exclusively hence appropriate or use any portion of the undivided suit property,(ii) as, affording of the aforesaid leeway to the co-owners concerned would rather beget eroding, of, the basic rubric ingraining, the concept of joint undivided suit property, (iii) salient canon whereof, is, grooved, in, the further salient underlying principle qua till a valid dismemberment of the undivided joint property, hence occurs, each co-owner holding unity of title, and, community of possession, vis-a-vis, the apposite joint suit property, unless, (a) the constructions carried thereon or users thereof, as, made by any co-owner, being consented, by all the co-owners; (b) the aggrieved co-owner also exclusively utilizing a portion of the undivided suit property, (c) utilization by the co-owner concerned, of, a part of the undivided suit property hence falling within his share, in, the undivided suit property, (iv) and its not comprising, the, best, and, valuable portion of the undivided joint suit property. 9. Be that as it may, a presumption of truth is garnered by EX.PW1/A, (i) and, though Ex.PW1/A makes a disclosure qua dismemberment of the joint estate purportedly therethrough hence occurring, and, wherethrough, the, plaintiff hence stood allotted a specific field number, (ii) yet, no efficacy can be assigned thereto, as no order has been placed, on record, whereunder the afore dismemberment, as, borne in Ex.PW1/A, hence validly occurred. Consequently, the presumption of truth assigned to EX.PW1/A, stands undislodged and unrebutted, and, concomitant effect thereof, is that, (iii) till any valid dismemberment, of, the joint estate hence occurs, none of the parties being bestowed with any indefeasible right, to, rather utilize the undivided suit khasra number. Even though, the afore ascriptions of conclusivity, vis-a-vis, the reflections borne in Ex/.PW1/A, would entitle the plaintiff to claim rendition of a decree for permanent prohibitory injunction, hence, being pronounced against the defendant. However, the predominant factor which is to be borne in mind, for, refusing relief, to, the plaintiff, (iv) is comprised in the factum of the plaintiff completing construction, of, his house upon the undivided suit khasra number, and, when it has not been demonstrated, that, in the defendant raising construction, upon, a portion, of, the undivided suit khasra numbers, his hence utilizing any portion, of, the undivided suit property, hence apparently falling beyond the domain of his share therein, (v) nor when evidence stood adduced, qua, the defendant utilizing a valuable portion of the suit property, (vi) consequently, the ensuing effects, are qua, when the equitable relief of permanent prohibitory injunction, enjoins, qua none of the parties to the lis, rather evidently disturbing equities, (vii) whereas, with the plaintiff raising construction, upon, a part, of, the undivided suit property, and, when the defendant is not proven, to raise construction, beyond, the domain of his share therein, nor he is shown to raise construction, upon, a valuable portion of the undivided suit property, (ix) thereupon, ex-facie equities, and, estoppel both are loaded against the plaintiff, and, rather are leaned, vis-a-vis, the defendant, with the concomitant effect, that, the rendition of a decree of permanent prohibitory injunction, vis-a-vis, the plaintiff would be grossly inapt, as tenably, done by the learned First Appellate Court. 10. Be that as it may, the plaintiff had contended that the defendant, had, while raising construction, hence proceeded to encroach, upon, a portion of the property, hence, falling within his share in the undivided suit property, and, he also prayed for appointment of, a, local commissioner, for determining the afore factum. 10. Be that as it may, the plaintiff had contended that the defendant, had, while raising construction, hence proceeded to encroach, upon, a portion of the property, hence, falling within his share in the undivided suit property, and, he also prayed for appointment of, a, local commissioner, for determining the afore factum. The afore relief was tenably declined by the learned First Appellate Court, as no pleading in consonance therewith stood cast in the plaint, nor any relief in consonance therewith, stood espoused in the plaint, nor any leave for making the afore amendment was hence concerted by the plaintiff, by his casting, an application, under, the provisions of Order 6, Rule 17 of the CPC. The effects of the aforesaid omissions, are, qua the afore reliefs hence standing tenably declined. However, upon, a valid dismemberment of the joint estate, it is open, to, the plaintiff, to, in accordance with law, hence, institute a fresh suit for rendition, of, a decree for mandatory injunction, against, the defendant. 11. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court hence being 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 respondent/defendant, and, against the plaintiff/appellant. 12. In view of the above discussion, there is no merit in the instant appeal and it is dismissed accordingly. Consequently, the judgment and decree rendered by the learned First Appellate Court, upon Civil Appeal No. 54 of 2004 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.