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2022 DIGILAW 896 (HP)

Chauhan Singh v. Sangita Devi

2022-12-30

SATYEN VAIDYA

body2022
JUDGMENT : Satyen Vaidya, J. By way of instant petition, the petitioner has challenged order dated 26.04.2022 passed by the learned Additional District Judge (CBI Court) Shimla, in Civil Misc. Appeal No.3-R/14 of 2021 whereby the order dated 21.10.2021 passed by learned Civil Judge, Court No.2, Rohru, in Civil Misc. Application 99-6 of 2021 (in Civil Suit No. 191 of 2021) has been affirmed. 2. Parties hereafter shall be referred by the same status which they hold before the learned trial Court. Petitioner is the defendant and respondent is the plaintiff before the learned trial Court. 3. Plaintiff has filed Civil Suit No. 191 of 2021 before the learned trial Court seeking relief of permanent prohibitory injunction against the defendant to the effect that he be restrained from raising any type of construction or changing the nature of the land bearing Khata Khatauni No. 6/18, Khasra Nos. 1429 and 1430, measuring 00-20-79 hectare situated in revenue Village Chirgaon, Tehsil Chirgaon, District Himachal H.P. (hereinafter referred to as the “suit land”), till the partition of the suit land was effected in accordance with law. 4. The plaintiff has filed the above noted suit on the premise that she was one of the co-owners of the suit land and had 1/3rd share therein along with her daughters. As per plaintiff, the suit land was joint with other co-owners including the defendant. It is further averred by the plaintiff that defendant had already raised construction of a building on five biswas of land out of the suit land and further he had sold four biswas therefrom in favour of Shri Shishi Ram and his wife Smt. Sushma Devi. Accordingly to plaintiff, defendant was trying to grab more land than his share in the suit land. Plaintiff also claimed her possession over the suit land. Thus, the plaintiff sought decree of permanent prohibitory injunction against the defendant by alleging that defendant had no right to raise further construction on the suit land till partition of the same in accordance with law. 5. Defendant has contested the suit of the plaintiff and has filed written statement. He has claimed exclusive possession of entire land by alleging that the same had fallen to his share in a private partition between the parties, that had taken place in the year 1986. 5. Defendant has contested the suit of the plaintiff and has filed written statement. He has claimed exclusive possession of entire land by alleging that the same had fallen to his share in a private partition between the parties, that had taken place in the year 1986. He has further alleged that in the private partition, the late husband of plaintiff was allotted land in Khewat No.5, Khatauni No. 16 in which he had raised one house and now further the plaintiff was raising construction of another house thereon. Defendant further submitted that he was raising construction after demolishing the old structure which was in his possession throughout. Defendant has specifically denied that he was trying to occupy more land than his share. He specifically pleaded that his two sisters namely Lobha Devi and Pushpa Devi had relinquished their entire share in favour of the defendant and his brother Meshar Singh. 6. Alongwith the suit, the plaintiff also filed an application under Order 39, Rules 1 and 2 of the CPC read with Section 151 of the CPC seeking interim injunction restraining defendant from raising any type of construction on the suit land. Defendant contested the application. Learned trial Court allowed the application by holding that the suit land is joint and till its partition defendant had no right to usurp any specific portion thereof. Learned trial Court further held the right of plaintiff to claim interim injunction on the ground that she is co-owner and even if out of possession can seek injunction to prevent the act which is detrimental to her interest. 7. The defendant preferred an appeal against the order passed by learned trial Court, but again remained unsuccessful. Learned Appellate Court also held that the suit land is joint and that the land sought to be utilized by the defendant was valuable portion of the suit land. Such inference has been drawn by the learned Appellate Court from the fact that the defendant had sold some portion of the suit land to third parties and had also raised construction of another building thereon. Learned Appellate Court further held that since the suit land is a valuable portion and no partition has taken place, the defendant was liable to be restrained and thus upheld the order passed by the learned trial Court. 8. Learned Appellate Court further held that since the suit land is a valuable portion and no partition has taken place, the defendant was liable to be restrained and thus upheld the order passed by the learned trial Court. 8. I have heard learned counsel for the parties and have also gone through the entire record carefully. 9. Perusal of contents of plaint reveal that the plaintiff has filed the suit on the ground that the defendant was trying to usurp more land than his share, to which he was not entitled especially till the partition of the suit land. 10. From the written statement of defendant, it comes out that defendant had pleaded right over the entire suit land on the basis of private partition. He has categorically averred that the parties are co-owners in another khata also bearing No.5 out of which the predecessor-in-interest of plaintiff had been allotted land in a private partition. 11. Primarily, the relief of injunction is granted at the discretion of the Court. Section 36 of Specific Relief Act vests the Court with power to grant injunction at its discretion. Whereas perpetual injunction can be granted in terms of provisions of Section 41 of the Specific Relief Act, temporary injunctions are governed by provisions of Code of Civil Procedure. In order to succeed in getting the relief of injunction one has to qualify three way tests. He has to show existence of a prima facie case, balance of convenience and irreparable loss in his favour. Thus, the Courts while deciding the prayer of interim injunction have to marshal all the facts and circumstances of each case and to assess them at the touchstone of aforesaid principles. 12. Both the Courts have failed to take notice of the fact that the suit land was not the only joint land between the parties. Land comprised in Khata No.5 was also joint inter se them as there was no rebuttal to the averments made in this regard in the written statement. In view of the existence of such fact, it was necessary for both the Courts to have looked at the extent of entire joint land between the parties. Defendant has placed on record copies of jamabandis in respect of joint land comprised in Khata No.5 and also the suit land. In view of the existence of such fact, it was necessary for both the Courts to have looked at the extent of entire joint land between the parties. Defendant has placed on record copies of jamabandis in respect of joint land comprised in Khata No.5 and also the suit land. The entire suit land and the joint land comprised in Khewat No.5 is depicted as jointly owned and possessed by co-owners. The total area of land comprised in Khata No.5 is 01-33-10 hectares and that of the suit land is 00-20-70 hectares. Whereas the share of defendant in Khata No.5 is mentioned as 1/3rd equivalent to 00-68-94 hectares, in suit land his share is shown as 31/120 equivalent to 00-05-37 hectares. In suit land, the share of defendant is less than his share in Khata No.5 as he has sold four biswas of land in favour of third parties. Thus, plaintiff has total share to the extent of 00-64-31 hectares. It is not the case of the plaintiff that the defendant has occupied or trying to occupy more land than his entire share in the joint land. Even in the suit land, defendant still has share equivalent to the extent of 14 biswas after selling four biswas of land to third parties. Even if, he has constructed a house on the suit land to the extent of five biswas, he still has share to the extent of about 9 biswas of land in the suit land itself. 13. Thus, there was no material on record which could have justified the allegations made in the plaint regarding defendant utilizing land more than his share in the suit land. It is not the case of the plaintiff that new construction being raised by defendant is on more than nine biswas of land. Even otherwise at the time of partition the entire joint land in all the joint khatas between the parties will be considered for settling the equities inter se them. Noticeably, no partition proceedings are pending between the parties till date. 14. Further, there is no material on record to suggest that defendant is utilizing that portion of the suit land which is of some special value. Evidently, there is no such specific pleading in the plaint and also no material has been placed on record to suggest such an inference. 14. Further, there is no material on record to suggest that defendant is utilizing that portion of the suit land which is of some special value. Evidently, there is no such specific pleading in the plaint and also no material has been placed on record to suggest such an inference. Keeping in view the largeness of the total joint land between the parties to the suit and other co-owners and also keeping in view the extent of share of defendant, it was incumbent upon the plaintiff either to prima facie show that defendant was in the process of usurping land more than his share or the portion of land on which he was raising construction, was of special value to the plaintiff or was different from the rest of the joint land. It was for the plaintiff to prima facie satisfy the Court that some exclusivity was attached to that portion of the suit land which is being uilized by the defendant by raising construction. 15. The fact that the predecessor-in-interest of plaintiff had raised construction of a house and the plaintiff is also raising new construction has not specifically been rebutted. 16. I am of the considered view that the learned Courts below have clearly erred in not appreciating and considering the material facts of the case. By placing restraint on the construction being raised by defendant till indeterminate period, the defendant will not only be deprived from raising a house/building, he will also be lead to financial loss as the construction prices are escalating day by day. In any case, the plaintiff is not likely to loose equities at the time of partition of the entire joint land between the parties, keeping in view the largeness thereof. 17. Keeping in view the facts and circumstances of the case, the instant petition is allowed and the order dated 26.04.2022, passed by the learned Additional District Judge (CBI Court), Shimla in Civil Misc. Appeal No.3-R/14 of 2021 affirming the order dated 21.10.2021 passed by learned Civil Judge, Court No.2, Rohru, District Shimla, H.P. in C.M.A No. 99-6 of 2021, is set aside and the application of the plaintiff for interim injunction is dismissed. All pending applications also stand dismissed.