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Himachal Pradesh High Court · body

2019 DIGILAW 121 (HP)

Prem Chand v. Inder Mohan

2019-01-10

SANDEEP SHARMA

body2019
JUDGMENT : SANDEEP SHARMA, J. 1. Instant petition filed under Article 227 of the Constitution of India, is directed against the judgment dated 28.07.2018, passed by learned District Judge, Hamirpur, H.P. in Civil Misc. Appeal No. 7 of 2018, affirming the order dated 01.02.2018, passed by learned Senior Civil Judge, Nadaun, District Hamirpur, H.P., in C.M.A No.238 of 2016, whereby an application filed under Order 39, Rules 1 & 2 CPC, having been filed by the respondent/plaintiff (hereinafter referred to as “plaintiff”) came to be allowed. 2. Necessary, facts as emerge from the record are that plaintiff had filed a civil suit for permanent prohibitory injunction and mandatory injunction under Sections 38 and 39 of the Specific Relief Act, praying therein that the suit land comprised of Khata No.20 min, Khatauni No.40 min, Khasra No. 339,measuring 0-00-66, hectares situated at Tika Dhadoon, Mouja Hathol, Tehsil Nadaun, District Hamirpur, is owned and possessed by him and petitioners (hereinafter referred to as “defendants”) have no right, title or interest whatsoever over the same. Plaintiff further averred in the plaint that there is abadi of plaintiff over the part of the suit land and rest of the suit land is used as courtyard. Defendants are totally strangers to the suit land. They have no right, title or interest, whatsoever over the suit land. Plaintiff also averred in the suit that defendants are threatening to raise construction and create passage over the courtyard of the plaintiff and as such they be restrained by issuing decree of permanent prohibitory injunction and mandatory injunction. 3. Along with aforesaid suit, plaintiff also filed an application under Order 39, Rules 1 & 2 CPC, praying therein for ad-interim injunction. Learned trial Court vide an order dated 1st February, 2018, allowed the application and directed the defendants not to cause any interference, raise construction, create nuisance, change the nature and create path through the suit land till the final disposal of the main suit on merits. 4. Being aggrieved and dissatisfied with the aforesaid order passed by learned Senior Civil Judge, Nadaun, District Hamirpur, H.P, defendants filed an appeal under Order 43 Rule 1(r) of CPC in the Court of learned District Judge, Hamirpur, H.P., who subsequently, vide judgment dated 28.07.2018, upheld the order dated 01.02.2018, passed by learned Senior Civil Judge, Nadaun, as a consequence of which, appeal having been filed by defendants came to be dismissed. In the aforesaid background, defendants have approached this Court in the instant proceedings, praying therein to dismiss the application having been filed by the plaintiff under Order 39, Rules 1 & 2 CPC, after setting aside the impugned judgment and order, passed by the learned Courts below. 5. Having heard the learned counsel representing the parties and perused the material available on record vis-a-vis, the reasoning assigned by learned Courts below, while allowing the application, having been filed by the plaintiff under Order 39 Rule 1& 2 CPC, this Court sees no illegality and infirmity in the same, rather this Court finds that both the learned Courts below have dealt with each and every aspect of the matter meticulously and there is no scope left for this Court to interfere with the same. 6. In the case at hand, plaintiff has filed suit for permanent prohibitory injunction, averring therein that suit land as described hereinabove, is owned and possessed by him and defendants are totally strangers to the suit land and they have no right, title or interest whatsoever over the same, but they are threatening to raise construction and create passage over the courtyard of the plaintiff. In the 2nd week of September, 2016, the defendants forcibly trespassed over the suit land and caused nuisance. 7. The suit as well as application have been contested by the defendants by filing written statement and reply, in which they contended that plaintiff and defendant No.1 are joint owners in possession of the suit land and they are having residential houses and common courtyard as reflected in the site plan. However, it stands admitted that defendants have now no right over the suit land except the right of passage. They further stated that since plaintiff installed CCTV Cameras which disturb the privacy of defendants, they made a complaints to the Panchayat as well as Police. Defendants further stated that they never interfered with the suit land and trespassed into the suit land but definitely they have right of passage through the suit land which they have been enjoying for the last 80 years. 8. Defendants further stated that they never interfered with the suit land and trespassed into the suit land but definitely they have right of passage through the suit land which they have been enjoying for the last 80 years. 8. A careful perusal of the record of the Courts below as well as documents, i.e. copy of jamabandi for the years, 2009-10, reveals that suit land is recorded as “Gair mumkin Abadi”, wherein plaintiff has been shown to be absolute owner of the suit land and as such, there is no error in the findings returned by the learned Court below that respondents are totally strangers to the suit land. Similarly, documentary evidence placed on record, reveals that defendants are causing nuisance by interfering and changing the nature of the suit land without any right to do so. If the averments contained in the written statement and reply to the application having been filed by the defendants are read in their entirety juxtaposing the averments contained in the plaint as well as in the application for stay, it stands duly proved that the defendants have admitted the factum with regard to partition of land inter se parties and have claimed that they have right to use passage since they have been using it for the last 80 years. It is not in dispute that land in dispute stands partitioned inter se the parties and as such, learned Courts below have rightly concluded that the status of the joint-ness of land has been severed and now the defendants are totally strangers to the suit land. Moreover, perusal of the copy of mussavi placed on record, clearly suggests that there is a cow-shed of the defendants, to which they are claiming path through the suit land, but, there is an alternative path to approach their cow-shed from two sides, and as such, no prejudice would be caused to the defendant, in case order of injunction passed by the court below is allowed to continue. 9. After careful perusal of the record available on record vis-à-vis impugned judgment and order passed by the learned Courts below, this Court is convinced and satisfied that plaintiff has been able to carve out a prima facie case, entitling him for interim relief as has been granted by the learned Courts below and as such, present petition is dismissed being devoid of any merit. 10. 10. Needless to say that findings returned in the instant judgment by this Court shall have no bearing on the merit of the case pending before the learned Trial Court, which shall be decided by it on the totality of evidence to be led on record by the respective parties. Pending applications, if any, are disposed of.