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2019 DIGILAW 292 (HP)

Thakur Dass v. Sunita Rajput

2019-03-19

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. By way of instant petition filed under Article 227 of the Constitution of India, challenge has been laid to judgment dated 31.7.2018, passed by the learned District Judge, Kullu in Civil Misc. Appeal No. 4 of 2018, reversing the order dated 19.4.2018, passed by the learned Senior Civil Judge, Lahaul-Spiti at Kullu, H.P. in CMA No. 223-VI/2017, whereby an application filed under Order 39, Rules 1 and 2 CPC having been filed by the petitioner-plaintiff (herein after referred to as "the plaintiff"), came to be allowed and respondent-defendant (in short "the defendant"), was restrained from causing any interference in the suit land as described herein below. 2. Necessary facts shorn of unnecessary details, are that plaintiff filed a suit for permanent prohibitory injunction, restraining the defendant or her family members, agents , servants etc., from causing unlawful interference in the Verandah of his house/building situate on the land comprising of Khata Khatauni No.537 min/778, bearing khasra No.2101/1817, measuring 00-05-00 bighas (herein after referred to as "the suit land") and from causing any damage thereto, averring therein that he is owner in possession of the suit land along with his four storeyed house/building existing there on. Plaintiff averred in the plaint that inside the circumference of his house/building and under the eaves of its first floor, his personal stair case leading from Verandah in the ground floor to the first floor exists and as such, defendant has no right, title or interest therein. Plaintiff alleged that defendant threatened her to use his personal stair case to go to her house existing on khasra No. 2723/3330/1871/1 and also threatened to damage the Verandah on the first and ground floor of the suit land so as to pave way to her house. Plaintiff also averred that defendant filed false complaint against one Vijay Raj Gaur under Section 145 Cr.PC, before the learned Sub Divisional Magistrate, Kullu, alleging therein that he had been obstructing the path and had not been allowing her to bring the construction material through the said path. Her complaint was allowed by the SDM vide order dated 19.5.2016. Vijay Raj Gaur being aggrieved with the aforesaid order passed by the SDM, filed revision petition in the Court of learned Sessions Judge, Kullu, which is pending adjudication. Her complaint was allowed by the SDM vide order dated 19.5.2016. Vijay Raj Gaur being aggrieved with the aforesaid order passed by the SDM, filed revision petition in the Court of learned Sessions Judge, Kullu, which is pending adjudication. Plaintiff alleged that since despite his repeated requests, defendant is hell bent to use his personal stair case, he was compelled to file aforesaid suit along with application under Order 39 Rules 1 and 2 CPC, seeking therein restraint order against the defendant. 3. Respondent by way of written statement as well as reply to the stay application filed under Order 39 Rules 1 and 2, refuted the aforesaid claim of the plaintiff and claimed that suit land stands recorded in the ownership of Thakur Sita Ram through its Kardar and same is in possession of the plaintiff as perpetual lessee. Defendant also claimed that plaintiff constructed suit building thereon in complete violation of the approved site plan and she had purchased 4 biswas of land comprised in Khasra No.2723/3330/1817/1, vide sale deed dated 29.4.2009, from one Khem Chand through his General Power of Attorney Ram Krishan Mahant, whereby right of path was expressly conferred upon her. She also claimed that Khem Chand also sworn an affidavit dated 25.8.2009, in support of her two Karam wide path and filed the same in the office of TCP Kullu, who subsequently vide order dated 11.3.2010 approved her plan, wherein the said path was duly recorded and shown in the approved site plan. Defendant claimed that path in question exists in between the houses of the plaintiff and Kamla Devi on the southern side and house of Dhanwanti Devi on the Northern side and connects NH-21 with her house/plot and same is only approach thereto. 4. Defendant claimed that Vijay Raj Gaur, who happened to be son of the plaintiff, wrongly and illegally obstructed the path, as a consequence of which, she was compelled to file complaint under Section 145 Cr.PC in the Court of learned SDM Kullu, who subsequently vide order dated 19.5.2016, restrained Vijay Raj Gaur, from obstructing her path. She further averred that Vijay Raj Gaur, assailed aforesaid order by filing Revision Petition No. 9 of 2017, in the Court of learned Sessions Judge, Kullu, which was also dismissed vide order dated 9.1.2018. She further averred that Vijay Raj Gaur, assailed aforesaid order by filing Revision Petition No. 9 of 2017, in the Court of learned Sessions Judge, Kullu, which was also dismissed vide order dated 9.1.2018. The defendant also alleged that the plaintiff along with his sister Kamla, gave no objection in writing in the proceedings before SDM and expressly admitted her right over the path, however, subsequently, he (plaintiff) at the instance of Vijay Raj Gaur, illegally extended his projection thereover and thereafter wrongly and illegally proclaimed the same to be part of his house/land. In the aforesaid background, defendant sought dismissal of the suit as well as application for stay having been filed by the plaintiff. 5. Learned Senior Civil Judge, Lahaul-Spiti at Kullu, H.P. vide order dated 19.4.2018, allowed the application having been filed by the plaintiff under Order 39 Rules 1 and 2 CPC along with main suit and restrained the defendant from causing any interference in the suit land as well as house of the applicant existing thereon and causing any damage thereto till the disposal of the main suit. 6. Being aggrieved and dis-satisfied with the aforesaid restraint order, issued by the Senior Civil Judge, Kullu, H.P., defendant preferred an appeal under Order 43 Rule 1 (r) CPC in the court of learned District Judge, Kullu, who vide order dated 31.7.2018, accepted the appeal having been filed by the defendant and set-aside impugned order dated 19.4.2018, passed by the learned trial Court, as a consequence of which, application filed under Order 39 Rules 1 and 2 read with Section 151 CPC, having been filed by the petitioner-respondent-plaintiff came to be dismissed. In the aforesaid background, plaintiff has approached this Court in the instant proceedings, praying therein for restoration of order dated 19.4.2018, passed by the learned Senior Civil Judge, Lahaul-Spiti at Kullu, District Kullu, in CMA No. 223-VI/2017, after setting aside judgment dated 31.7.2018, passed by the learned District Judge, Kullu, H.P. in CMA No. 4 of 2018. 7. I have heard the learned counsel for the parties and gone through the records of the case. 8. Close scrutiny of pleadings as well as material placed on record along with the same reveals that plaintiff is a lease holder (Pattadar), whereas name of Ram Krishan, S/o Kahan Singh stands reflected in the column of ownership. 7. I have heard the learned counsel for the parties and gone through the records of the case. 8. Close scrutiny of pleadings as well as material placed on record along with the same reveals that plaintiff is a lease holder (Pattadar), whereas name of Ram Krishan, S/o Kahan Singh stands reflected in the column of ownership. Though factum with regard to existence of abadi on khasra No. 2101/1817 belonging to the plaintiff, has not been specifically denied by the defendant, but admittedly, no material especially patta, if any, granted in favour of the plaintiff by the original owner, ever came to be placed on record by the plaintiff. Similarly, this Court finds that there is no specific challenge, if any, to the ownership of the defendant qua the land comprising khasra No. 2723/3330/1817/1, which defendant purchased from one Khem Chand through General Power of Attorney Ram Krishan Mahant vide sale deed dated 29.4.2009. Defendant with a view to prove her ownership qua the land in question as well as her right to use the path, which is bone of contention inter-se parties, placed on record photo copy of the sale deed, which clearly reveals that land comprising of khasra No. 2723/3330/1817/1, was purchased by the defendant from the original owner of the land of the plaintiff and son of the plaintiff i.e. Vijay Gaur, was one of the witness to the sale deed. Similarly, this Court finds that there is a specific recital in the sale deed regarding the use of path. Defendant purchased land in the year, 2009 from Khem Chand, through his general power of attorney Ram Krishan Mahant and as per averments contained in the written statement as well as reply to the stay application, right of the path was expressly conferred in her favour in the sale deed, which factum can be further substantiated from the affidavit dated 25.8.2009, executed by owner of the land in support of the fact that two karam Wide path was given to the defendant, whereafter site plan was submitted to TCP Kullu, by the defendant. TCP Kullu, approved the plan in the year, 2010, wherein path was duly depicted/recorded. TCP Kullu, approved the plan in the year, 2010, wherein path was duly depicted/recorded. It appears that initially plaintiff or his son Vijay Raj Gaur never obstructed to the use of path by the defendant, but subsequently, in the year, 2016, when construction material was being carried to the land purchased by the defendant through the path in question, Vijay Kumar Gaur, son of the plaintiff, obstructed the path of the defendant, compelling the defendant to file complaint under Section 145 Cr.PC in the court of learned SDM Kullu, who vide order dated 19.5.2016, restrained the son of the plaintiff Vijay Gaur from obstructing the passage of the defendant. Vijay Gaur filed revision petition in the court of learned Sessions Judge, Kullu, laying therein challenge to order dated 19.5.2016, passed by the SDM, but same was dismissed vide order dated 9.1.2018. It is only after passing of order dated 9.1.2018, whereby an order dated 19.5.2016, passed by the SDM, Kullu, in the proceedings initiated under Section 145 Cr.PC., came to be upheld, plaintiff Thakur Dass filed suit in question. It also emerges from the pleadings as well as material placed alongwith the same that in the proceedings before the learned SDM Kullu, plaintiff along with his sister Kamla gave no objection in writing, expressly admitting the right of the defendant over the path. However, subsequently, plaintiff allegedly at the instance of Vijay Raj Gaur, extended the projection over the path and started claiming the path in question to be part of his suit land/property. In the suit at hand, plaintiff claimed that cause of action accrued in his favour on 7.10.2017, when despite repeated requests defendant refused to admit the claim of the plaintiff, whereas it is admitted fact that dispute inter-se parties with regard to usage of passage, started in the month of May, 2016, when defendant filed complaint under Section 145 Cr.PC in the court of SDM Kullu, who on the basis of material made available to him restrained the plaintiff from causing any obstruction in the passage of the defendant. 9. There appears to be considerable force in the argument of Sh. 9. There appears to be considerable force in the argument of Sh. Sushil Kumar Tiwari, learned counsel for the respondent- defendant that plaintiff suppressed material facts from the court while filing the suit for permanent prohibitory injunction, seeking restraint order against the defendant because admittedly bare perusal of the plaint, nowhere discloses factum with regard to furnishing of affidavit by the plaintiff and her sister Kamla Devi in the complaint having been filed by the defendant under Section 145 Cr.PC. in the court of learned SDM, Kullu, and it is only after dismissal of the revision petition filed by Vijay Raj Gaur, who happened to be son of the plaintiff, plaintiff filed suit claiming therein that cause of action accrued in his favour on 7.10.2017, whereas as has been discussed in detail, dispute inter-se parties to the lis with regard to usage of path in question had actually started in May, 2016. Essential ingredient for invoking provisions of Section 145 Cr.PC by the SDM is that there is apprehension of breach of peace due to dispute over any land or water or boundaries thereof. As per sub-section (1) of Section 145 Cr.PC, apprehension of breach of peace must exist at the time of initiation of proceedings under Section 145 Cr.PC. By now it is well settled that enquiry under Section 145 Cr.PC is limited to the question as to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties and courts while exercising its revisionary powers cannot go into the question of sufficiency of material relied upon by the Magistrate to base his/her satisfaction. 10. Section 145 CrPC clearly provides that Magistrate before initiating proceedings, should be satisfied that dispute regarding immovable property exists and such dispute is likely to cause breach of peace, and once he/she is satisfied of aforesaid two conditions, he/she shall proceed to pass preliminary order under sub-section (1) of Section 145 and thereafter make inquiry under sub-section (4) and pass final order under sub-section (6) and it is absolutely not necessary at the time of passing of final order for him/her to record that apprehension of breach of peace continues or exists. 11. 11. True it is that object of Section 145 Cr.PC., is not to provide the parties an opportunity of bringing their civil disputes before a Criminal Court, or maneuvering for possession for the purpose of subsequent civil litigation and the real object of this provision is to arm the Magistrate with an additional weapon for maintaining peace within his/her area, but certainly magistrate while exercising power under Section 145 Cr.PC., is required to decide limited question as to who was in actual possession on the date of passing of preliminary order i.e. when magistrate proceeds to pass preliminary order under sub-section (1) of Section 145 Cr.PC., and thereafter makes inquiry under Section 4 of Section 145 Cr.PC. In the case at hand, as has been taken note herein above, learned SDM on the complaint having been filed by the defendant restrained plaintiff by way of order dated 19.5.2016, from obstructing the passage of defendant, meaning thereby, magistrate at the time of passing of aforesaid order was satisfied that at the time of filing of complaint by the defendant, she had been using that passage and as such, SDM with a view to ensure that there is no breach of peace, restrained the plaintiff from obstructing the passage of defendant. Reliance is placed upon judgment dated 24.10.2018, passed by this Court in case titled Smt. Usha Rani Sood v. Bhola Ram and Ors. in Cr.MMO No. 80 of 2018. 12. Leaving everything aside, Mr. Palsra, learned counsel or the petitioner, was unable to dispute that plaintiff as well as his sister had executed an affidavit in favour of the defendant in the court of learned SDM, Kullu in the proceedings initiated by the defendant under Section 145 Cr.PC., whereby they virtually admitted right of the defendant to use the path in question. Similarly, there is nothing to dispute that land came to be purchased by the defendant through a person, who had sold the land to the plaintiff for construction of the house and at that time, Mr. Vijay Raj Gaur, i.e. son of the plaintiff, was witness to the sale deed and as such, learned District Judge while reversing the finding returned by the learned Senior Civil Judge, rightly arrived at conclusion that principle of estoppel as envisaged under Section 115 of the Indian Evidence Act, is applicable. Vijay Raj Gaur, i.e. son of the plaintiff, was witness to the sale deed and as such, learned District Judge while reversing the finding returned by the learned Senior Civil Judge, rightly arrived at conclusion that principle of estoppel as envisaged under Section 115 of the Indian Evidence Act, is applicable. It clearly emerges from the record that in both the proceedings i.e. under Section 145 Cr.PC., decided by the SDM Kullu and in the suit at hand, plaintiff as well as his son had been contesting the right of the defendant to use the path in question. Moreover, plaintiff did not approach the Civil Court with clean hands and as such, learned District Judge, rightly held him not entitled to the interim relief. In the case at hand, this Court has no hesitation to conclude that since plaintiff after having suffered two orders i.e. firstly, by SDM in proceedings under Section 145 Cr.PC., and thereafter by the learned Sessions Judge, Kullu, in the Criminal Revision, approached the Civil Court for grant of relief, which otherwise stood declined to him in earlier proceedings as has been taken note herein above, as such, no interim injunction could be granted in favour of the plaintiff. 13. Needless to say, while determining prima-facie case, balance of convenience and irreparable loss, which are three conditions necessary for grant of interim injunction, courts are required to decide the matter on the basis of pleadings as well as documents placed on record as photo copies or in the form of affidavits or pleadings because certainly, subsequently these documents are required to be proved in accordance with law by the parties to deny the claim during the course of the trial. This Court is not in agreement with Mr. Palsra, that since only photocopies of affidavits, sale deed and other relevant documents were placed on record, no cognizance, if any, of the same could be taken by the courts below while considering claim of the parties. This Court is not in agreement with Mr. Palsra, that since only photocopies of affidavits, sale deed and other relevant documents were placed on record, no cognizance, if any, of the same could be taken by the courts below while considering claim of the parties. Though in the case at hand, bare existence of order dated 19.5.2016, passed by the SDM in proceedings initiated by the defendant under Section 145 Cr.PC., which further came to be upheld by learned Sessions Judge, in the Criminal Revision Petition No. 9 of 2017, vide order dated 9.1.2018, is/was sufficient to infer prima-facie case in favour of the defendant, but even otherwise pleadings adduced on record by the defendant, which have been not specifically refuted, are sufficient to conclude that there is no prima-facie case in favour of the plaintiff and as such, Civil Court ought not have issued restraint order against the defendant, who was initially allowed by the plaintiff to carry construction material to her plot using path in dispute. 14. At the cost of repetition, it may be noticed at this stage that though defendant by placing sale deed proved her ownership qua the land comprising khasra No. 2723/3330/1817/1, but no material document, especially patta, if any, granted in favour of the plaintiff ever came to be placed on record and as such, this Court is persuaded to agree with the contention of learned counsel for the respondent-defendant that neither there is prima-facie case nor balance of convenience in favour of the plaintiff, entitling him to interim injunction, rather documents, which may not be original, placed on record by the defendant clearly suggest that she had purchased land comprising khasra No. 2723/3330/1817/1 vide sale deed dated 29.4.2009 from one Khem Chand through his general power of attorney Ram Krishan Mahant and right of path was expressly conferred therein. Similarly Hem Chand also sworn in affidavit dated 25.8.2009 in support of the claim of the defendant that 2 karam wide path was given to her at the time of execution of aforesaid sale deed. Had there been no path existing at the time of execution of the sale deed, TCP Kullu would not have approved the site plan submitted by the defendant. Had there been no path existing at the time of execution of the sale deed, TCP Kullu would not have approved the site plan submitted by the defendant. Tatima, if any, placed on record by the plaintiff to depict the disputed site, is yet to be proved in accordance with law by the plaintiff and as such, trial Court ought not have placed heavy reliance upon the same while granting interim injunction in favour of the plaintiff because question whether tatima annexed by the plaintiff is actually a part of the suit land or is part of other land, is yet to be proved in accordance with law by the plaintiff during trial. 15. The existence of prima-facie right and infraction of the enjoyment of his-her property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with the prima-facie title, which is required to be established on evidence at the trial. Prima facie case is a substantial question raised, bona fide, which needs investigation and decision on merits, Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction, rather court while granting interim injunction is required to satisfy condition that no interference by the court would result in irreparable injury to the party, seeking relief and there is no other remedy available to the party except one to grant injunction. Irreparable injury does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by ways of damages. While determining balance of convenience, court is required to exercise judicial discretion to find the amount of substantial mischief or injury, which is likely to be caused to the parties if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Dalpat Kumar and Anr. V. Prahalad Singh and Ors, (1993) AIR SC 276. 16. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Dalpat Kumar and Anr. V. Prahalad Singh and Ors, (1993) AIR SC 276. 16. In the case at hand, authenticity of documents placed on record by both the sides can be considered at the trial and not at the stage of considering interim injunction. Material placed on record clearly reveals that defendant had been using the path in question after having purchased land comprising Khasra No. 2273/3330/1817/1, which she purchased vide sale deed 29.4.2009 and as such, no irreparable loss would be caused to the plaintiff in case defendant is allowed to use path in question during the pendency of the trial, especially, when there is no other alternative path available to the defendant to go to her property. Plaintiff can be compensated later on by stopping the defendant from using that piece of land in case during the trial plaintiff is able to establish that path in question is his exclusive property. But at the same time, in case injunction order, is granted against the defendant, she will suffer irreparable loss, which may not be compensated later on as the property, which was constructed by her on her land, cannot be used and in case, plaintiff subsequently fails to prove his right over the path in question, loss, which would be accrued to the defendant during the pendency of the proceedings before the learned trial Court, cannot be compensated in any manner. 17. Consequently, in view of the totality of facts and circumstances narrated herein above vis-a-vis reasoning assigned by the learned District Judge while passing impugned judgment, this Court sees no reason to interfere in the same, which otherwise appears to be based upon proper appreciation of facts as well as law and as such, same is upheld. Accordingly, the petition is dismissed.