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2018 DIGILAW 264 (HP)

Sarla Devi v. Madan Singh

2018-03-07

DHARAM CHAND CHAUDHARY

body2018
JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. Judgment dated 17.8.2017 passed by learned District Judge, Kangra at Dharamshala in Civil Miscellaneous Appeal No. 06/2015 is under challenge in this petition. 2. The petitioner herein is the plaintiff. Since an application, she filed along with the Civil Suit Under Order 39 Rules 1 & 2 CPC (registered as CMA No. 114 of 2011) has been dismissed by learned Civil Judge (Jr. Divn.) Kangra, vide order Annexure P-3 and as the order so passed has been affirmed by learned lower appellate Court vide the impugned judgment, therefore, the petitioner (hereinafter referred to as the plaintiff) has assailed the legality and validity thereof on the grounds inter alia that the same is highly unjust, illegal and contrary to law as well as facts of the case. Both courts below allegedly have not considered the pleadings of the parties and material available on record in its right perspective. The factum of the plaintiff having raised no construction over the suit land or any portion thereof whereas respondent-defendant No. 1 Madan Singh has started raising construction over best portion thereon has not been taken into consideration. 3. The bone of contention in the present lis is land entered in Khata No. 19 min, Khatauni No. 21 min, Kh. Nos. 223, 235, 237, 238, 385, 389, 390 and 397 measuring 01-17-78 hectares, situated at Mohal Jatehar, Mauza Jalari, Tehsil and Distt. Kangra, H.P. The same is joint of the parties to the suit. The respondent-defendant No.1 allegedly has started raising construction of his house over six marlas of land entered in Kh. No. 238 i.e. measuring 01-17-78 hectares whereas his share in the said field is only to the extent of 0-02-05 hectares. The land being joint of the parties, the said defendant allegedly has no right to change its nature. The response of the respondents-defendants, however, is that the plaintiff herself has constructed her house over a portion of the joint land and now when defendant No. 1 has started raising construction of house, it is she alone who has objected to it. 4. The response of the respondents-defendants, however, is that the plaintiff herself has constructed her house over a portion of the joint land and now when defendant No. 1 has started raising construction of house, it is she alone who has objected to it. 4. Learned trial Judge, on taking into consideration the pleadings of the parties and material available on record and also going through the report of Local Commissioner appointed to visit the spot for taking stock of the prevailing situation there, has concluded that the plaintiff has already constructed a new house and also is in possession of a portion of ancestral house which belongs to all the co-sharers. It has also been noticed by learned trial Judge that Madan Singh, defendant No. 1 who is at the verge of retirement has started raising construction of his house with the consent of all the co-sharers. Such being the position taken note of by learned trial Judge, the application was dismissed vide impugned order Annexure P-3. Similar is the view of the matter taken by learned District Judge while dismissing the appeal vide impugned judgment Annexure P-4. 5. On having heard learned counsel representing the parties on both sides and going through the material available on record at this stage, this Court is in full agreement with the view of the matter taken by both courts’ below for the reason that the plaintiff, who herself has constructed a new house as reported by the Local Commissioner in his report after conducting the spot inspection, she is not entitled to the grant of interim injunction, which is an equitable relief. It is well settled that the party seeking equity must do equity. Therefore, when the plaintiff herself has raised construction of house over the joint land, she is not at all justified in claiming that defendant No. 1 has been raising construction of his house over the joint land. The suit land is comprised under various Khasra numbers. She cannot pick up only one Kh. No. i.e. 238 to raise the plea that his share in that Kh. No. is lesser than the area on which he has started raising the construction of house. 6. In order to adjudge his share, the entire suit land which admittedly is joint of the parties, has to be taken into consideration. She cannot pick up only one Kh. No. i.e. 238 to raise the plea that his share in that Kh. No. is lesser than the area on which he has started raising the construction of house. 6. In order to adjudge his share, the entire suit land which admittedly is joint of the parties, has to be taken into consideration. Therefore on this score also, no case in favour of the plaintiff is made out. On the other hand, defendant No. 1 who is at the verge of retirement has started raising construction of the house with the consent of all co-sharers. The present, as such, is not a case where the interim injunction as sought by the plaintiff should have been granted. Therefore, learned trial Court and for that matter, learned lower appellate Court, have rightly declined the prayer for grant of interim injunction made by the plaintiff. The appeal, as such, has rightly been dismissed by learned lower appellate Court vide judgment Annexure P-4 under challenge before this Court in the present petition. Being so, the impugned judgment calls for no interference by this Court. 7. For all the reasons hereinabove, this petition fails and the same is accordingly dismissed. Consequently, the impugned judgment is affirmed. The petition is accordingly disposed of, so also the pending application(s), if any.