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2019 DIGILAW 253 (HP)

Pradeep Sood v. Suman Kumari

2019-03-12

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, the petitioners have challenged order dated 11.05.2017, passed by the Court of learned Senior Civil Judge, Theog, District Shimla in CMA No. 84-6 of 2015, Civil Suit No. 190/1 of 2015, vide which, an application filed by the respondent under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure stands allowed by the learned Trial Court whereby petitioners have been restrained from causing any kind of obstruction or blocking the path as is existing over the land comprised in Khasra No. 484, 485 and 496 till the final disposal of the suit, as also order dated 12.12.2017, passed by the Court of learned Additional District Judge (CBI), Shimla, Camp at Theog in Civil Misc. Appeal No. 6-T/14 of 2017, vide which the appeal filed by the petitioners against the order passed by the learned Trial Court has been dismissed. 2. Brief facts necessary for the adjudication of this petition are as under: Respondent-plaintiff has filed a suit for perpetual and mandatory injunction against the petitioners/defendants, which is pending adjudication in the Court of learned Senior Civil Judge, Theog, District Shimla. Case of the respondent-plaintiff, in brief, is that the suit land was owned by one Sat Prakash, upon which house was also constructed. There is one common path, which leads from Kotkhai Bazaar to the aforesaid land and house. Path exists since time immemorial and was being used by Sat Prakash and his predecessors and other inhabitants. The suit land was sold by Sat Prakash alongwith house thereupon on 12.12.2014 vide registered sale deed to the plaintiff and mutation to this effect also stood entered in favour of the plaintiff. Defendants, i.e., the present petitioners, who are brothers of Sat Prakash, have erected an iron gate with iron door over the aforesaid path on the boundary line of Khasra Nos. 485 and 486 and have locked the door of the gate, as a result of which, it has become difficult for the plaintiff and her family members to have excess to their house as also the land purchased. As per the plaintiff, in the demarcation which was carried out, it was found that defendants had blocked the path by erecting the gate just in the middle of Khasra Nos. 485 & 486. As per the plaintiff, in the demarcation which was carried out, it was found that defendants had blocked the path by erecting the gate just in the middle of Khasra Nos. 485 & 486. As despite her requests, defendants did not remove the obstruction, therefore, the suit was filedinter alia, with the prayer that the defendants be restrained permanently not to obstruct the path passing through Khasra Nos. 484, 485 and 486. Along with the suit, an application under Order 39 Rules 1 and 2, as already mentioned above, was also filed, which was opposed by the present petitioners. Learned Trial Court vide order dated 11.05.2017 allowed the application in the following terms: “27. In view of aforesaid discussion, the applicant has been successful in proving that she has prima facie case in her favour and it will be the applicant who shall suffer irreparable loss if temporary injunction is not granted to her. The balance of convenience also favours the applicant. 28. Resultantly, the respondents are hereby restrained from causing any kind of obstruction or block the path as existing over the land comprised Khasra No. 484, 485 and 496 till the final disposal of the case on merits. However, the aforesaid findings shall have no bearing or effect on the merits of the case. The record of application after its due completion be tagged with the main case file.” This order passed by the learned Trial Court has been upheld in appeal by the learned Appellate Court. 3. Feeling aggrieved, the petitioners have filed this petition. 4. A perusal of the order passed by the learned Trial Court demonstrates that the factum of Sat Prakash having sold his share in favour of the plaintiff has not been denied by the petitioners/defendants. However, their defence was that the sale of his share by Sat Prakash in favour of respondent-plaintiff was illegal as Sat Prakash was bound by a compromise arrived between him and the petitioners/defendants, wherein he had agreed not to sell his share to any person out of the family. The sale deed in favour of plaintiff was null and void and inoperative against the right, title and interest of defendants. 5. Learned Trial Court held that copies of Jamabandi for the year 2006-2007 demonstrated that the nature of the suit land, i.e., land comprised in Khasra Nos. The sale deed in favour of plaintiff was null and void and inoperative against the right, title and interest of defendants. 5. Learned Trial Court held that copies of Jamabandi for the year 2006-2007 demonstrated that the nature of the suit land, i.e., land comprised in Khasra Nos. 485, 486 and 487 is “Gair Mumkin Rasta” and the contention of the petitioners/defendants that the suit land is not common path stood belied by the revenue record. 6. Learned Trial Court took into consideration the copy of demarcation report, as per which, Revenue Officer had found that the path was obstructed by way of construction of a gate. Learned Trial Court held that it was an admitted position that respondent/plaintiff was also one of the co-owner by virtue of sale deed dated 23.12.2014. It took note of Suit No. 134-1 of 2015 filed by the present petitioner No. 1- Pradeep Sood, challenging the sale deed in issue, which was also pending before the learned Trial Court. 7. Learned Trial Court held that once it stood established on record that the plaintiff was co-owner of the land in issue, she had right to access the same through common path, i.e., the suit land in question. On these bases, learned Trial Court concluded that as the plaintiff has a prima facie case in her favour and balance of convenience was also in her favour, not granting interim relief, as prayed for by way of an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure would cause irreparable loss to her. 8. These findings have been upheld in appeal by the learned Appellate Court, by holding that land comprised in Khasra Nos. 485,486 and 487 is shown as Gair Mumkin Rasta, which belies the case of the defendants that the suit land is not a common path. Learned Appellate Court also held that the plaintiff had made out a case for the grant of interim relief, which stood granted in her favour by the learned Trial Court. 9. Mr. 485,486 and 487 is shown as Gair Mumkin Rasta, which belies the case of the defendants that the suit land is not a common path. Learned Appellate Court also held that the plaintiff had made out a case for the grant of interim relief, which stood granted in her favour by the learned Trial Court. 9. Mr. Romesh Verma, learned counsel for the petitioners has vehemently argued that the orders passed by both the learned Courts below are not sustainable in the eyes of law, as learned Courts have erred in not appreciating that when a separate suit was already pending, in which, the validity of the sale deed stood questioned, no interim relief could have been granted in favour of the respondent. He has also argued that as in the Civil Suit filed by petitioner No. 1, a status quo order was passed on the same day by the learned Trial Court, therefore, no temporary injunction could have been granted in favour of the respondent in the Suit filed by her. He has further argued that learned Trial Court has erred in not appreciating that the suit of the defendants was not maintainable, as the same was bad for non-joinder of necessary parties. 10. On a query made by the Court to Mr. Verma, he fairly submitted that no application under Section 10 of the Code of Civil Procedure has been filed by the petitioners for the stay of the suit filed by the present respondent. 11. On the other hand, Mr. Neeraj Gupta, learned counsel for the respondent has defended the orders passed by both the learned Courts below by submitting that on the basis of the averments made in the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, as the respondent/plaintiff was able to make out a prima facie case in her favour, therefore, there is no perversity, illegality or jurisdictional error in the orders passed by the learned Courts below, whereby interim protection has been granted in her favour. He has further argued that the respondent having entered into the footsteps of Sat Prakash could not be precluded from the usage of the path. According to him, as there is no merit in the present petition, therefore, the same deserves to be dismissed. 12. He has further argued that the respondent having entered into the footsteps of Sat Prakash could not be precluded from the usage of the path. According to him, as there is no merit in the present petition, therefore, the same deserves to be dismissed. 12. I have heard learned counsel for the parties and have also gone through the impugned orders as well as the record of the case. 13. In my considered view, there is no merit in this petition as neither the order passed by the learned Trial Court granting temporary injunction in favour of the respondent nor the order passed by the learned Appellate Court affirming the same suffers from any perversity, illegality or jurisdictional error. Both the learned Courts below, on the basis of material on record, have held and rightly so that as the respondent/plaintiff was able to make out a prima facie case in her favour, therefore, she was entitled for the grant of temporary injunction. 14. During the course of arguments, learned counsel for the petitioner could not demonstrate that the findings returned by both the learned Courts below on facts of the lis were not borne out from the record of the case. His contention that the filing of a suit by the petitioners itself precluded learned Trial Court from passing any order in favour of the respondent, is without any basis. Whether or not the respondent was entitled for any temporary injunction, had to be decided by the learned Trial Court on the basis of averments made in the Suit instituted by the respondent and this is exactly what has been done by the learned Trial Court. 15. The contention of Mr. Verma that in view of a status quo order passed on the very same day by the learned Trial Court in the Suit filed by petitioner No. 1 in an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure bearing CMA No. 53-6 of 2015 in Civil Suit No. 134/1 of 2015, the relief granted in favour of the respondent self contradicted the order passed in favour of the petitioners, is also without any merit. The only relief which has been granted by the learned Trial Court in favour of the respondent is that it has restrained the petitioners from causing any obstruction or blocking the path as it exists over the land comprised in Khasra Nos. 484, 485 and 496 till the disposal of the case. 16. I have gone through the certified copy of the order passed by the learned Trial Court in application filed under Order 39 Rules 1 & 2 of the Code of Civil Procedure by the present petitioner No. 1. The relevant part of the order is reproduced herein below: “24. Coming to the second relief of the applicant i.e. pertaining to the common path existing over the said property. This Court is also of the view that it will be in the fitness of the circumstance of the case if the parties are directed to maintain status quo qua the existence and nature of such path. 25. Though, the applicant has not been able to brought on record any document showing exact measurement or specification of such common path however, it is clear from his pleadings that such path exists over the suit land. The applicant can certainly brought on record further evidence to clearly establish the identity and specification of such path when the trial of the case will commence. At this stage, keeping in view the allegations of the applicant that respondents are causing interference in such path are required to be believed. The reason being if any obstruction is certainly being made by the respondents, then the applicant shall suffer irreparable loss which cannot be compensated in terms of money. The applicant can only use and enjoy his built up structure existing over the suit property, if he is permitted to use the common path existing over the suit land which as per the applicant leads to the entrance of his property/house. On the other hand, if such is not the case, still the respondents have nothing to loose as they will not suffer anything on account of the passing of such order. In view of this Court the user of the common path is required to be remained unobstructed for any of the party as well as for co-owner of the suit property over which the common path is also existing. In view of this Court the user of the common path is required to be remained unobstructed for any of the party as well as for co-owner of the suit property over which the common path is also existing. Some of the photographs annexed with the plaint, to some extent depict such path. 26. If as per the allegations of the applicant, there is obstruction in his user of common path then it will be the applicant who shall suffer inconvenience. 27. In view of aforesaid discussion, the applicant has been successful in proving that he has prima facie case in his favour and will be the applicant who shall suffer irreparable loss if temporary injunction is not granted to him. The balance of convenience also favours of the applicant. 28. As the result of aforesaid discussion the respondents are hereby restrained from alienating, creating charge or selling the suit land till the final disposal of the case on merits. It is further held that till the pendency of main suit both the parties shall maintain status quo qua existence and nature of such path as existing over the suit land. However, the aforesaid findings shall have no bearing or effect on the merits of the case. Record of application after its due completion be tagged with the main case file.” 17. In my considered view, there is no conflict in the two orders, i.e., the order passed in the application under Order 39 Rules 1 and 2 CPC filed by the petitioner No. 1 and a similar application filed by the respondent in her case. In fact, a harmonious reading of both the orders clearly demonstrates that the intent of the learned Trial Court was that during the pendency of the suits, the parties are to maintain status quo qua the common path, meaning thereby that neither of the parties were to restrain or obstruct the moment of other party over the path in question. No order has been passed by the learned Trial Court allowing petitioner No. 1 to obstruct the moment of respondent over the suit land. 18. As far as the contention of learned counsel for the petitioners that the suit was bad for non-joinder of necessary parties and therefore also, no interim relief could have been granted to the respondent is concerned, in my considered view, the same is also without any merit. 18. As far as the contention of learned counsel for the petitioners that the suit was bad for non-joinder of necessary parties and therefore also, no interim relief could have been granted to the respondent is concerned, in my considered view, the same is also without any merit. If the suit is bad for non-joinder of necessary parties, then there is a procedure prescribed under the Code of Civil Procedure, which has to be followed by the petitioners in this regard. However, simply because according to the present petitioners the suit is bad for non-joinder of necessary parties, this does not mean that the learned Trial Court was precluded from passing an order granting interim relief. 19. In view of the observations made hereinabove, as this Court does not find any perversity, illegality or jurisdictional error in the orders under challenge, this petition is dismissed. No order as to costs. Miscellaneous applications, if any, also stand disposed of.