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2019 DIGILAW 275 (HP)

Ramesh Kumari v. Chander Kumar

2019-03-15

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The plaintiffs' suit for rendition of a decree for permanent prohibitory injunction, vis-a-vis, the suit land, and, against the defendants, stood dismissed, by the learned trial Court. In an carried therefrom by the aggrieved plaintiffs, before the learned First Appellate Court, the latter court has also rendered a verdict hence affirming the verdict made by the learned trial Court. The plaintiffs/appellants herein are aggrieved therefrom, hence, institute the instant regular second appeal before this Court. 2. Briefly stated the facts of the case are that the plaintiffs instituted a suit for injunction to restrain the defendants from changing the nature of the suit and from dispossessing the plaintiffs. The allegations were that defendants No.4 to 9 were strangers to the suit land, and, that they in connivance with defendants No.1 to 3, who were co-sharers, were threatening to put the suit land to their exclusive use to which they had not right. They prayed that the defendants No.1 to 3 be restrained from changing the nature of the suit land in any manner whatsoever, and, in case the defendants are found to have changed the nature of the suit land during the pendency of the suit, relief of mandatory injunction with direction to restore status qua ante be passed. They further pray that the defendants No.1 to 9 be restrained from causing dispossession of the plaintiffs from the suit land in any manner whatsoever which is jointly possessed by the plaintiff and defendants No.1 to 3 and that the defendants No.4 to 9 be restrained from interfering in the suit land in any manner whatsoever. 3. The defendants contested the suit and filed separate written statements. Defendants No.1 to 3 admitted the claim of the plaintiffs, however, they have denied the averment qua theirs conniving with defendants No.4 to 9. Defendants No.4 to 9, in their written statement averred that they were owners in possession of 3 biswas of land out of the suit land. Their possession over 3 biswas of land had been since the year 1945-46. They had their cow-shed on this piece of land. The possession was peaceful, hostile and continuous. They asserted that they had no connection with the rest of the land. Their possession over 3 biswas of land had been since the year 1945-46. They had their cow-shed on this piece of land. The possession was peaceful, hostile and continuous. They asserted that they had no connection with the rest of the land. It was also pleaded that defendants No.1 and 2 had filed a suit against defendants No.5 and 6 in respect of this very cow-shed which had ended in a compromise. It was alleged that the suit now filed by the plaintiffs was collusive between the plaintiffs and defendants No.1 to 3. 4. The plaintiff filed replication(s) to the written statement(s) of the defendant(s), wherein, they denied the contents of the written statement(s) and re-affirmed and re-asserted 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 the plaintiffs are entitled for the relief of permanent prohibitory injunction? OPP 2. Whether the suit is not maintainable? OPD. 3. Whether defendants No.4 to 9 have become the owners of the land by way of adverse possession? OPD. 4. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom, by, aggrieved plaintiffs, before the learned First Appellate Court, the latter Court dismissed the, appeal, and, affirmed the findings recorded by the learned trial Court. 7. Now the plaintiffs/appellant(s) herein, have instituted the instant Regular Second Appeal, before, this Court, wherein they assail the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 23.03.2005, this Court, admitted the appeal instituted by the plaintiffs/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the inferences and conclusions, as drawn by both the courts below are based upon surmises and conjectures and since the appellants were found to have title over the suit land, therefore, decree for permanent prohibitory injunction was required to be passed and also on the basis of title, decree for possession with respect to 3 biswa of land should have been passed, as explained in the report of Local Commissioner, Ex.DW9/A and Ex.DW9/B? 2. 2. Whether the appellants being not party to the previous litigation and compromise, Ex.DW2/A, therefore, they are not bound by the same and no benefit could be given to the respondents? Substantial questions of Law No.1 and 2: 8. Undisputedly, the suit property is undivided inter se, the, all co-owners in the suit, i.e. the plaintiffs, and, defendants No.1 to 3. However, defendants No.4 to 9 are not co-owners in the suit property. Nonetheless, under a compromise, borne in Ex.DW2/A, the afore defendants, rather surrendered their possession, qua defendants No.1 to 3, vis-a-vis, the khasra numbers disclosed therein. As aptly concluded by the learned first appellate Court, that, with the afore exhibit standing drawn, inter se, defendants No. 1 to 3, and, defendants No.4 to 9, and, with the latter defendants, rather not holding, any, pre existing right in the suit property, (a) rather with, the, former defendants hence evidently holding rights, as, co-owners, in, the suit property, (b) thereupon, the afore document, did not, require any compulsory registration, hence for its acquiring, the, requisite efficacy. Even if, the afore exhibit, does acquire any probative vigour, and, obviously when reverence is to be meted thereto, only, for determining, that, rather only possession there through, vis-a-vis, the khasra number disclosed therein, hence standing restored, to, defendants No.1 to 3, (c) yet the assumption of possession thereunder by defendants No.1 to 3, would not, dis-entitle the plaintiffs, to make a valid claim, for rendition of a decree for permanent prohibitory injunction. The reason for forming the afore inference, is, sparked by (d) the suit property remaining undivided, and, until dismemberment of the entire suit property rather occurs, by metes and bounds, (e) hence thereupto, the solemn principle ingraining, the, jurisprudential concept of co-ownership, embedded in the canon qua all co-owners, holding unity of title, and, community of possession, vis-a-vis, the entire undivided suit khasra numbers, rather remaining intact. The further effect, thereof being, (f) that, no portion of the undivided suit property being available for exclusive appropriation by any co-owner, even if in exclusive possession thereof, (g) rather any physical or constructive possession of any exclusive tract, of, any undivided suit property hence being construable to be vicarious possession, for or on behalf of all other co owners, who, however, do not hold any exclusive possession thereof, (h) with the exception that unless complete ouster therefrom of other co-owners hence is pleaded, and, also stands proved, (i) whereas, with the apt complete ouster, vis-a-vis, the suit khasra numbers remaining unpleaded, and, also remaining unproven, (j) thereupon, upon, vindicating the afore solemn principle hence governing the jurisprudential concept, of, uncontestedly hereat undivided suit property, (k) it is concluded that it was in sagacious for both the learned courts below to till occurrence, of, partition of the suit property, hence, deny the relief of permanent prohibitory injunction to the plaintiffs, (l) preeminently hence when it would beget, the, ill-consequence qua in garb thereof, the defendants being impermissibly, hence, being leveraged, to, put to their exclusive user, the, yet undivided suit property. 9. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court, as well as, of the learned trial Court being not based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first both the learned courts below have excluded germane and apposite material from consideration. Accordingly, the substantial questions, of law are answered in favour of the appellants/plaintiffs, and, against the respondents/defendants. . 10. In view of the above discussion, the instant appeal is allowed, and, the concurrent impugned judgments, and, decrees rendered by both the learned courts below are set aside. Consequently, the plaintiffs' suit is decreed for permanent prohibitory injunction, and, defendants No.1 to 3 restrained from changing the nature besides ousting the plaintiffs, from, constructive/vicarious possession, upon, the suit land, in any manner, whatsoever, till the dismemberment, of, the suit land, by metes and bounds, rather occurs, whereas, defendants No.4 to 9 being strangers to the suit land are also restrained from interfering in the suit land in any manner whatsoever by themselves or through their agents, servants assigns etc. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.