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2019 DIGILAW 1473 (HP)

Narayan Chand v. Chaman Lal through LRs

2019-09-30

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. The instant petition, stands directed, by the aggrieved applicant/plaintiff/petitioner herein (for short ?the plaintiff?), against, the verdict recorded, upon, CMA No. 03-NL/14 of 2018, by the learned Additional District Judge-I, Solan, District Solan, H.P., (a) and where through the defendants' appeal, was partly allowed, and, concomitantly the order rendered by the learned Senior Civil Judge, on, 3.1.2018, upon CMA No. 7/6 of 2018, whereby it directed, the, contesting litigants, to, maintain status quo, vis-a-vis, the nature, construction, and, possession, of, the land measuring i.e (i) 5 bighas 17 biswas, and, borne in khasra nos. 338/12 (3-11), 340/12 (2-1), and, upon khasra No. 28 (0- 5), as, comprised in khata/khatauni Nos. 6 Min/6; and (ii) and also qua land measuring 3 bighas 4 biswas, comprised in khata/khatauni Nos. 5 min/5 bearing khasra No. 339/12, situated, in the area of village kashmirpur Brahmana, Tehsil Nalagarh, District Solan, H.P. (for short ?the suit land?), (iii) was rather modified into an order, being pronounced, upon, the appellants/defendants/respondents herein (for short ?defendants?), from, interfering, vis-avis, the land borne, in, khasra No. 339 of 2012, however, vis-a-vis land comprised in khasra Nos. 338/12, 340/12, and, Khasra No. 28 , the, espoused relief was declined, vis-a-vis, the plaintiff/applicant. 2. The plaintiff had strived, for, rendition, of, an order, of, ad-interim injunction being pronounced, vis-a-vis, the suit land, through, an application cast, under, the provisions of Order 39 Rule 1 and 2 CPC, and, the afore application, was cast, during the pendency of the apposite Civil Suit, wherein also, an alike relief stood espoused. 3. The learned counsel for the plaintiffs', endeavor to constrain this Court, to, interfere with the impugned verdict, would succeed, upon, the apposite triplicate tests, hence, governing the granting and declining, of, relief of ad-interim injunction, being satiated, (i) triplicate tests whereof are embodied, in the, trite principles(s) qua prima-facie case being loaded, vis-a-vis, the plaintiff, (ii) balance of convenience also being loaded, vis-a-vis, the plaintiff, (iii) and, rather irreparable loss and injury being encumbered upon the plaintiff, upon, the espoused relief becoming declined, vis-a-vis, him. 4. 4. In settling, from, the apposite material, as, existing on record, vis-a-vis, there through, hence, the afore triplicate tests rather governing the granting or declining, of, the espoused relief, becoming satiated or not satiated, (a) the germane factum, for, accepting the espousal, of, the plaintiff, is, rested, upon, the suit land remaining joint inter-se the contesting litigants, and, concomitantly until valid dismemberment(s) thereof, (b) through metes and bounds, hence occurring, hence, there upto none of the contesting litigants, holding any leverage, to use or appropriate any portion of the undivided suit land, vis-a-vis, their exclusive usage, (c) as, conspicuously, any ordering, of, an affirmative order, upon, the apposite application, hence, would encumber, an, inapt casualty, vis-a-vis, the trite rubric underlining, the, concept of joint ownership, and, rested on the principle, vis-a-vis, till a valid dismemberment, of, joint land occurs, hence, there upto every co-owners, holding unity of title, and, community of possession, upon, every inch of the joint land, (d) unless any of the contesting litigants, has, already disturbed equities, through raising construction, within, his share, and, upon, a, valuable portion of the undivided suit land, (e) and, whereupon, his being debarred, to, claim injunction against the other co-owners, who, strive(s), to, make compatible therewith strivings, upon, the undivided suit land. 5. Be that as it may, a perusal of the relevant paragraph, of, the impugned verdict, rather makes imminent trite displays, (a) vis-a-vis, after the completest dismemberment, of, the undivided suit land, occurring amongst, the, contesting litigants, also, through, the, apposite mutation, standing recorded, by, the revenue authority concerned, (b) and, thereafter in concurrence therewith, entries being made, in, the revenue records concerned, and, when the afore records also display, vis-a-vis, the defendants, becoming owners in possession, of, khasra Nos. 338/12, 340/12 and 28, and, the plaintiff becoming exclusive owner, in, possession of land borne in khasra No. 339/12, (c) thereupon, with occurrence, of, the completest severance, of, the joint estates, amongst, the contesting litigants, hence it would, be unbefitting for this Court, to, proceeded to make any interference with the impugned order. Also hence all the afore apposite triplicate tests are wanting, in their apt satiation. 6. The learned counsel for the plaintiff, contends that the order attesting mutation, hence made by the A.C 1st Grade on 9.9.2008, has been challenged, before the appellate authority concerned. Also hence all the afore apposite triplicate tests are wanting, in their apt satiation. 6. The learned counsel for the plaintiff, contends that the order attesting mutation, hence made by the A.C 1st Grade on 9.9.2008, has been challenged, before the appellate authority concerned. However, the mere institution, of, an appeal there against, before the quarter concerned, would not, negate the effect of the afore inference, as, after delivery of physical possession, of, dismembered tract of land, vis-a-vis, the contesting litigants concerned, (a) rather the mere pendency of, an, appeal against the order made, on, 9.9.2008, by the A.C 1st Grade, before the learned appellate authority concerned would not perse invalidate, the holding, of, separate possession(s), of, the dismembered tracts, of land, rather by each of the erstwhile co-owners concerned. Moreso, with its institution, occurring after a period of six years, elapsing therefrom. 7. In aftermath, the afore triplicate tests, do not, beget their apt satiation, and, also hence, there is no gross perversity or absurdity in the appreciation of the records, as, done by the learned appellate Court, and, thereupon this Court is constrained, to, uphold the impugned order, and, to dismiss the instant petition. Accordingly, the instant petition is dismissed alongwith all pending applications.