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2019 DIGILAW 796 (HP)

Harinder Singh v. Ram Lal

2019-06-28

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 defendant, stood hence decreed, and, the defendant''s/counter claimant''s, counterclaim, wherein he reared a plea qua his acquiring title, vis-a-vis, the suit khasra number(s), through, adverse possession, rather stood dismissed, by the learned trial Court. The aggrieved therefrom defendant/counter claimant one Ram Lal, preferred an appeal, before the learned First Appellate Court, and, the latter court , while upholding the appealed against verdict, hence, dismissing the defendant''s/counter claimant''s counterclaim, (a) thereafter proceeded to accept the appellant/defendant''s appeal, only, on the score qua the suit being not maintainable, vis-a-vis, the undivided suit property, conspicuously for want of joinder, of all the co-sharers, in the array of plaintiffs or in the array of co-defendants. The plaintiffs are aggrieved therefrom, hence, have instituted, the instant regular second appeal, before this Court. 2. Briefly stated the facts of the case are are that the plaintiff has filed suit for rendition of a decree for permanent prohibitory injunction against the defendant to restrain the defendant from interfering in any manner in peaceful ownership and possession of the land comprised in Khasra No.912, 913 and 915, Kita 3, measuring 00-18-38 hectares, Khata No.8, min, Khatauni No. 56, situated in Chak Chillala, Tehsil Chirgaon, District Shimla, H.P. The suit land is averred to be in exclusive ownership and possession of plaintiff''s father along with other co-sharers and over khasra No.912, there is two storeyed house and over the land comprised in Khasra No. 913 and 915, there is apple orchard with fruit bearing plants. The house was constructed by the plaintiff himself in 1990 and apple orchard was planted by the father of the plaintiff along with other co-sharers in the year 1975. It is also averred that father of the plaintiff and other co-sharers died in 1998 and suit land was inherited by the plaintiff and other co-sharers. The plaintiff along with other co-sharers is exclusive owner in possession of the suit land. The defendant is real uncle of the plaintiff and other cosharers and he resides near to the suit land. The plaintiff used to reside maximum time in village Tangnu. The plaintiff along with other co-sharers is exclusive owner in possession of the suit land. The defendant is real uncle of the plaintiff and other cosharers and he resides near to the suit land. The plaintiff used to reside maximum time in village Tangnu. The defendant by taking advantage of absence of plaintiff from the suit land started causing interference by preparing bedding and pruning etc., in the apple orchard in the first week of March, 2003 with the intention to take its possession. The plaintiff has not allowed the defendant to take forcible possession of the suit land by the defendant is still adamant to take forcible possession of the suit land. It is also averred that in the column of possession and ownership, the name of Smt. Bhajan Dei and Parmod Kumar, Smt. Sarojni etc., figures but they have not been arrayed parties as the suit has also been filed for their benefit also. The defendant has o right, title or interest over the suit land and he be restrained from causing any kind of interference with the ownership and possession of the plaintiff in respect of the suit land in any manner and prayed that the suit be decreed. 3. The defendant contested the suit and filed written statement, wherein he has taken preliminary objections qua maintainability, suit is not properly constituted, land being in possession of the defendant and suit for injunction being not maintainable, suit being bad for non joinder of necessary parties, and, that the plaintiff has not cause of action to file the suit and the replying defendant has acquired title over the suit land by way of adverse possession. On merits, it is averred that it is wrong that orchard was raised by the father of the plaintiff. It is also denied that there is two storeyed house upon the suit land. It is averred that in the month of March, 1975, the father of the plaintiff Main Ram sent defendant to village Chillala to develop the land and use the same for the benefit of family. The parties to the suit belongs from village Tangnu and there entire landed property is joint at village Tangnu. Earlier the father of the plaintiff Main Ram and now plaintiff himself along with his family used to reside at village Tangnu. The parties to the suit belongs from village Tangnu and there entire landed property is joint at village Tangnu. Earlier the father of the plaintiff Main Ram and now plaintiff himself along with his family used to reside at village Tangnu. However, the replying defendant is residing at village Chillala where suit land is situated and he has constructed the house over the suit land and developed the orchard out of his personal income. Neither the plaintiff nor his father Main Ram ever took any activities over the suit land. The suit land was purchased by defendant and father of the plaintiff jointly out of joint funds of family and 90% was contributed by the defendant but the father of the plaintiff by taking advantage of illiteracy of the defendant got entered the suit land in his name only. It is averred that recently, defendant came to know about the wrong revenue entries hence he inspected the revenue record. The revenue entires in the name of the plaintiff and earlier in the name of his father may be declared null and void. The suit land is in possession of the replying defendant and there arises no question of taking forcible possession as averred in the plaint. The possession of the defendant over the suit land is since 1975 and the defendant has now acquired title by way of adverse possession regarding which the defendant is filing counterclaim separately. 4. The defendant in his counter claim has pleaded that the suit land was jointly purchased by the counter claimant and his late brother Main Ram out of joint funds and the entries showing previously late Main Ram as exclusive owner and thereafter the non counter claimant are illegal, baseless and may be set aside. In the alternate, it is prayed that the counter claimant is in hostile possession of the suit land since March, 1975 and has acquired title, vis-a-vis, the suit land. 5. Plaintiff filed written statement to the counterclaim, wherein, he has taken preliminary objections qua maintainability, evaluation, non supplying of better particulars, mis-joinder and non joinder of parties and counter claim is barred by limitation. 5. Plaintiff filed written statement to the counterclaim, wherein, he has taken preliminary objections qua maintainability, evaluation, non supplying of better particulars, mis-joinder and non joinder of parties and counter claim is barred by limitation. On merits, it is averred that initially Swarup Chand, brother of non counter claimant/plaintiff was looking after the suit land till his death in the year 1986 and thereafter it was the father of the non counter claimant/plaintiff till 1998 and now non counter claimant/plaintiff is looking after the suit land. The counter claimant/defendant has his own land near to the suit land and also in its possession. It is further averred that the counter claimant has made a false story that the suit land was purchased out of joint funds of the family. In fact, the counter claimant/defendant has purchased the land comprised in Khata No.49, Khataoni No.225 to 228 to the extent of 1/12 share situated in Chak Chillala on 28.2.1997. The plea of adverse possession which has been taken in alternate is in contradiction tot he plea taken about the joint property. The suit land is in possession of plaintiff/non-counter claimant and there arises no question of adverse possession. 6. The plaintiffs filed replication to the written statement of the defendant(s), wherein, he denied the contents of the written statement(s), and, re-affirmed and re-asserted the averments, made in the plaint. 7. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed?OPP. 2. Whether the suit of the plaintiff is not maintainable and competent as alleged?OPD. 3. Whether the suit of the plaintiff is bad in the eyes of law and effect thereof?OPD. 4. Whether the suit of the plaintiff is bad for non joinder of necessary parties, as alleged?OPD. 5. Whether the suit land is joint property of parties to the suit as alleged by the counter claimant? OPD. 6. Whether the revenue entries firstly showing late Main Ram as owner and then the non counter claimant as owner by way of succession are wrong, illegal, unlawful, null and void, being fraudulent and effect thereof?OPD 7. Whether the counter claimant have acquired the title of the suit by way of adverse possession, as alleged? OPD. 8. OPD. 6. Whether the revenue entries firstly showing late Main Ram as owner and then the non counter claimant as owner by way of succession are wrong, illegal, unlawful, null and void, being fraudulent and effect thereof?OPD 7. Whether the counter claimant have acquired the title of the suit by way of adverse possession, as alleged? OPD. 8. Whether the counter claimant is entitled to the relief of permanent prohibitory injunction,a s prayed for? OPD. 9. Relief. 8. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed plaintiffs''/appellants'' herein suit, whereas, it dismissed the defendant''s/counter-claimant''s counterclaim. In an appeal, preferred therefrom, by, aggrieved defendant/counter-claimant, before the learned First Appellate Court, the latter Court affirmed the verdict of the learned trial court, hence, dismissing the defendant''s/counter-claimant''s counterclaim, whereas, it dismissed the plaintiff''s suit, for want of non joinder, of all co-sharers, in the undivided suit property either in the array of plaintiffs, or in the array of co-defendants. 9. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 24.10.2013, this Court, admitted the appeal instituted by the plaintiff/appellant, against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial questions of law:- 1. Whether the judgment/decree dated 14.8.2013 passed by the first appellate court, is perverse, unsustainable in law in view of the fact that the first appellate court misinterpreted documentary evidence which was the foundation of the rights of the parties and failed to give benefit of the revenue record in favour of the appellant/plaintiff, i.e. Missal Hakiat and Parcha Jamabandi pertaining to the suit PW1/A, PW1/B,m and PW1/C to which the appellant/plaintiff was entitled for? 2. Whether the first appellate court failed to appreciated the fact that the reliance put on by the appellant/plaintiff upon the revenue record i.e. Missal Haquiat and Parcha Jamabandi pertaining tot he suit land i.e. PW1/A, PW1/B and PW1/C showing the possession of the appellant/plaintiff in law substantiate his case/claim and that the presumption of truth is attached with the revenue records under section 35 of the Indian Evidence Act and under Section 45 of the H.P. Land Revenue Act. Ignoring the aforementioned position of law has lead to passing of a judgment and decree which is perverse and not sustainable in law? Substantial questions of Law No.1 and 2: 10. For the reasons to be assigned hereinafter, it would be wholly unnecessary either to dwell upon or to mete an adjudication, vis-a-vis, the afore substantial question of law, whereon the extant appeal hence came to be admitted, under orders recorded by this Court, on 24.10.2013. The learned First Appellate Court, has made a fallacious or an erroneous reasoning, vis-a-vis, the suit being not maintainable, for want of joining in the apposite array, of legal combatants, all the co-owners in the undivided suit property, and, thereafter, it, also untenably proceeded to decline, the espoused relief qua rendition of a decree, of, permanent prohibitory injunction, qua the suit property, (i) given an issue in respect thereof, serialized as issue No.4, standing struck, and, also thereon the learned trial Court, hence, rendering findings qua, despite, non joinder of all co- sharers, in the undivided suit property, rather not rendering the plaintiffs'' suit, being not maintainable, (ii) given, the plaintiff averring qua the suit standing instituted, for the benefit of all co-sharers, in the undivided suit property, and, also when no relief against all the co-owners, in the undivided suit property, standing, claimed or ventilated hence in the plaint. The afore reasoning is well merited, as, a perusal of the plaint, as well as, of, the copies of missal hakiyat, and, of the apposite jamabandis, respectively embodied in Ex.PW1/A, to, Ex.PW1/C, (iii) appertaining to the suit property, though carrying reflections therein qua the suit property besides the legal contestants in the extant suit, being also, owned by other co-owners, (iv) and, when they may have been hence necessary parties, for, hence theirs being joined in the apposite array, of, legal combatants. (v) Importantly, all the concomitant effects thereof, and, besides fatality, vis-a-vis, non joinder, in the extant suit, of all co-owners in the undivided suit property, rather was required to be tested, in the light, of forthright averments, being cast in the plaint, qua apart, from the plaintiff, and, the defendant, there being other co-owners in the undivided suit property, (vi) casting, of, candid averment(s) whereof, spark, an inference qua the plaintiff coming forth with clean hands, and, obviously not camouflaging, the factum qua the suit property, standing, co-owned apart from him, and, by the defendant, rather also by other co-owners, as reflected in the afore exhibits, (vii) imperatively when therein also rather qua other co-owners in the suit property, there is no further espousal, vis-a-vis, rendition of a decree, of, permanent prohibitory injunction against them, rather the afore relief being confined only, vis-a-vis, the defendant. Cumulatively, hence, when the acquisition of title, vis-a-vis, the suit khasra numbers, though, forming a part of other lands jointly owned, and, possessed by the plaintiff, and, the defendant, along with other co-owners, (viii) is squarely rested, upon, the predecessor-in-interest of the plaintiff, making a registered deed of conveyance, with the vendor thereof. (ix) Moreover, when, further thereonwards, with the defendant''s/counter claimant''s, counter claim, being only confined, vis-a-vis, validity of execution of a sale deed, inter se the predecessor-in-interest of the plaintiff, and, the vendor of the apposite sale deed, (x) inasmuch as it being fraudulently executed, despite, his liquidating to the vendor a substantial part, of the sale consideration, (xi) and, when also in addition thereto, hence, the defendant in the counter-claim, rather projecting a stand qua his acquiring title, vis-a-vis, the suit khasra numbers, through adverse possession, and, when all the afore espousals rather stood negated, by the learned trial Court, (xii) and, the defendant/counter claimant''s appeal, reared therefrom, before the learned first appellate Court, also, suffering an alike fate. (xiii) Moreover, when the defendant/counter claimant, has not assailed, the dismissal, of, his counter-claim, by both the learned courts below, carrying therein the afore espousal, (xiv) hence, when the verdicts concurrently rendered, upon, his counter claim hence acquire conclusive, and, binding effect, (xv) the natural corollary thereof, is that, the acquisition of title, through, a sale deed, by the predecessor-in-interest of the plaintiff, vis-a-vis, the suit khasra numbers, khasra numbers whereof, upon being pooled or amalgamated, with the other khasra numbers, which are rather jointly owned and possessed, by other co-owners, also, apart from the legal contestants hereat, (xvi) and, even though even when, vis-a-vis, the suit property acquired, through, a registered deed of conveyance, by the predecessor-in-interest of the plaintiff, may be distinct, from other jointly owned property, inter se the legal contestant hereat, (xvii) and, the co-owners reflected in the afore exhibits, yet, upon, anvil of the principle of unity of title, and, community of possession, rather all the other recorded co-owners, also hence hold joint interests in the suit property, (xviii) and, though also would be required to be joined in the apposite array, of co-plaintiffs, or, in the array, of co-defendants. However, when the defendant, did not, after raising the afore preliminary objection, in his written statement, instituted to the plaint, hence, institute an appropriate application, for adding, in the array of co-defendants, other recorded co-owners, namely, Bhajan Devi, Parmod Kumar, Smt. Sarojni etc., (xix) thereupon, it appears that his raising the afore objection, vis-a-vis, the non joinder of the afore, in the array of litigants, being merely a mechanical, and, a perfunctory recourse, and, also his acquiescing qua the plaintiff instituting the suit, for permanent prohibitory injunction, also for the protection of the interests, in the jointly owned property, of, even afore recorded co- owners, in the undivided suit property. (xx) Conspicuously when the counsel for the defendant while holding, the plaintiff to cross-examination, meted an affirmative suggestion to him, qua the property located, at village Tangnu, standing partitioned inter se him, and, the defendant, and, whereto an affirmative answer, stood, purveyed by the plaintiff, (xxi) and, thereupon, this court makes a fortified inference, that there was no necessity at all, for the joining in the array of legal contestants, in the extant suit, of all the recorded co-sharers, in the undivided suit property nor hence the conclusion, recorded by the learned first appellate court, (xxii) that for want of joinder in the array, of legal contestants, in the extant suit, hence, of all the recorded co-owners, hence, the suit being not maintainable, (xxiii) and, thereafter its proceeding to decline the relief of permanent prohibitory injunction, vis-a-vis, the plaintiffs also rather cannot be countenanced, by this Court. 11. Be that as it may, since the dismissal of the defendant''s counter claim, has acquired conclusivity, and, binding effect, and, when the afore conclusivity, acquired by the concurrently recorded verdicts, by both the learned courts below, upon, the defendant''s counterclaim, wherethroughs, it rather stood dismissed, (i) and wherein espousals are borne qua his acquiring title, vis-a-vis, the suit land by adverse possession, (ii) and, qua the father, the predecessor-in-interest of the plaintiff fraudulently purchasing the suit land, through, a registered deed of conveyance executed inter se him, and, the apposite vendor thereto, (iii) resultantly also begets an imperative sequel, qua the plaintiff, validly deriving an interest in the suit property through his predecessor-in-interest, and, hence both, in equity and in law, he held a valid right to seek relief of permanent prohibitory injunction, vis-a-vis, the suit property, and, against the defendant/respondent herein. In aftermath, the declining of relief, to him, by the learned first appellate Court, under, the afore specious and flimsy reasoning, is unmeritworthy, and, suffers from a gross mis-appreciation of pleadings respectively, cast by the plaintiff, and, by the defendant. 12. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court, being not based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first appellate court has excluded germane and apposite material from consideration. Accordingly, the substantial questions, of law are answered in favour of the appellants/plaintiffs, and, against the respondent/defendant. 13. While rendering the findings, the learned first appellate court has excluded germane and apposite material from consideration. Accordingly, the substantial questions, of law are answered in favour of the appellants/plaintiffs, and, against the respondent/defendant. 13. In view of the above discussion, the instant appeal is allowed, and, the verdict of the learned first appellate court, dismissing the plaintiffs'' suit for permanent prohibitory injunction is set aside. Consequently, judgment and decree rendered by the learned trial Court upon Civil Suit No. 250/1 of 2008, is affirmed and maintained. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.