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2024 DIGILAW 210 (HP)

Dandu Ram v. Krishan Chand

2024-03-26

SATYEN VAIDYA

body2024
JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioners have assailed order dated 28.9.2022, passed by the learned Civil Judge, Court No.3, Ghumarwin, District Bilaspur in CMA No. 587-6/2022 in Civil Suit No. 27-1/2022. 2. Brief background of the case is that the petitioners and respondents herein are defendants and plaintiffs respectively in Civil Suit No. 27-1/2022, pending before the learned Civil Judge, Ghumarwin. For the sake of convenience, the parties hereinafter shall be referred to by the same status as they hold in the main suit. 3. Plaintiffs have sought a decree of declaration to the effect that they are entitled to get their half share partitioned from the defendants in the suit land, which in totality measures 13 bighas situated in Village Panyala, Tehsil Ghumarwin, District Bilaspur (hereinafter referred to as ‘the suit land’). In addition, a decree of permanent prohibitory injunction has also been prayed for by restraining the defendants from raising construction of any kind over any part of the suit land and particularly from installing gate over the road which leads from the house of the plaintiffs to the main road through courtyard of defendants. In alternative, decree for mandatory injunction has been prayed for, seeking directions against the defendants to remove the obstruction or gate if installed on the aforesaid road. 4. The suit has been filed on the premise that the suit land is joint between the plaintiffs at one hand and defendant No.1 on the other. Plaintiffs claim half share in the suit land. It is averred that another civil suit came to be contested between the parties at an earlier occasion, which was compromised by way of written compromise dated 13.7.2019 executed between the parties and exhibited as PX on record of the said suit. 5. Plaintiffs claimed to have constructed a road to their house on the suit land which connects the house to the main road. It is also the case of the plaintiffs that the said road was constructed by the plaintiffs with the consent of defendants and it was thereafter that the compromise dated 13.7.2019 was executed in the earlier suit. 5. Plaintiffs claimed to have constructed a road to their house on the suit land which connects the house to the main road. It is also the case of the plaintiffs that the said road was constructed by the plaintiffs with the consent of defendants and it was thereafter that the compromise dated 13.7.2019 was executed in the earlier suit. As per plaintiffs on 17.12.2021, the defendants obstructed the right of user of road of the plaintiffs through suit land and threatened to construct a gate in such a manner so as to deny the plaintiffs their right to ply vehicles up to their house. 6. Defendants have filed written statement and have asserted their position on a specific portion of the suit land. Their case is that the path available to the house of plaintiffs is unobstructed and passes from one side of the courtyard of the house of the defendants. The plaintiffs have no right to claim passage/road through the courtyard of the house of the defendants. As per the defendants, the part of suit land which was in their possession abutted the public road and since boundary of suit land towards public road was unattended, it was frequently subjected to tress pass by the public at large and for such purpose, they required the protection to their property by installation of a gate for protection from intrusion of wild animals was also pleaded by defendants. 7. Alongwith the suit, the plaintiffs also filed an application under Order 39 Rules 1 and 2 CPC for interim relief, which was registered as CMA No. 69-6/2022. Learned trial Court decided the said application alongwith another application filed under Order 39 Rule 4 of the Code by defendants, vide a common order dated 5.8.2022 in the following terms: “In view of the aforesaid discussion and considering the fact that the suit land is jointly owned by the parties, the application is only partly allowed to the extent that the respondents may install a gate to protect their property but with a condition not to obstruct in any way the access to the house of the applicants. Regarding the remainder of the suit land, the parties are directed to maintain status quo qua nature, possession and construction. Regarding the remainder of the suit land, the parties are directed to maintain status quo qua nature, possession and construction. It is further clarified that the gate, if installed, shall not be locked without the consent of the applicants and if the respondents wish to lock the gate then they shall provide a duplicate key of the same to the applicants.” 8. The plaintiffs subsequently approached the learned trial Court by filing an application under Section 151 CPC alleging therein the installation of a gate and railings by the defendants on the suit land in such a manner that the passage to the house of the plaintiffs was obstructed. A prayer was made in the following terms:- “It is, therefore, prayed before the Hon’ble Court that keeping in view the grounds of the application, the application may kindly be allowed and the railing affixed by the respondents in addition to the gate allowed by this Hon’ble Court vide order dated 5.8.2022 passed in an application under order 39 rule 1 and 2 CPC bearing CMA No. 69-6/2022 titled as Krishan Chand alias Krishan Lal and another versus Dandu Ram and another may kindly be ordered to be removed from point M to L showing the site plan attached with the application through police of P.S. Ghumarwin, Distt. Bilaspur H.P. and justice be done.” 9. Defendants contested the prayer of the plaintiffs by alleging that the passage as available to the house of the plaintiffs had not been obstructed at all and since the defendants had been permitted to install a gate on the suit land, railings were affixed to enclose the house and other part of the suit land which was in the possession of the plaintiffs and without which, the installation of gate would have not served the required purpose. 10. Learned trial Court passed the impugned order in following terms. “7. It is evident from the order and the pleadings filed in the main suit that the respondents had only sought the permission of installing a gate over the suit land. The pleadings of the respondents did not stipulate his intention of installing a railing along with the gate. If the respondents intended to do so then they should have come clean in their previous pleadings about the same. Further, the fact of installation of the railing is not denied but is rather admitted. The pleadings of the respondents did not stipulate his intention of installing a railing along with the gate. If the respondents intended to do so then they should have come clean in their previous pleadings about the same. Further, the fact of installation of the railing is not denied but is rather admitted. In addition to this, the respondents have contended that the gate could not have been installed without the railing. This contention is not sustainable as a gate needs pillars or support structures for installation and not a railing. It is clear that the respondents have admitted violating the order of this Court. In addition to this, the contention that an appeal has been preferred by the applicants against the said order and therefore, he cannot seek implementation of the order is not sustainable because the right to appeal is a statutory right and does not concern this Court. Further, the order dated 5.8.2022 is in operation until the same is set aside by the learned Appellate court. Therefore, there is no bar against the applicants seeking implementation of the order. 8. Therefore, this Court finds merit in the application and the same is allowed with special costs of Rs. 2,000/-. Accordingly the respondents are directed to remove the railing installed over the suit land and the SHo of police station Ghumarwin is directed to see to it personally that the said railing is removed as directed. Police report be called for 11.10.2022. Civil Ahlmad to do the necessary. Stands disposed of. Be tagged with the main case file.” 11. I have heard the learned counsel for the parties and have also gone through the record carefully. 12. It is a case where both the side admitted the suit land to be recorded in joint ownership of plaintiffs and defendant No.1 in the record of rights, though both have made their respective claims as to exclusive possession over certain specific portion of the suit land. 13. While passing the order dated 5.8.2022 in CMA No. 69-6/2022 and connected application, the learned trial Court had tried to balance the equities between the parties. 13. While passing the order dated 5.8.2022 in CMA No. 69-6/2022 and connected application, the learned trial Court had tried to balance the equities between the parties. Evidently the clear intent behind the order was to protect the right of passage from public road to the house of plaintiffs at one hand and on the other to save that part of suit property from intrusion by tress passers or wild animals, which was in possession of the defendants. 14. The defendants after passing of order dated 5.8.2022, raised construction of a gate and also installed some railings. As per the plaintiffs, the installation of railings by the defendants, firstly, was in violation of the order dated 5.8.2022, passed by the learned trial Court and secondly, it obstructed the passage to the house of the plaintiffs. The defendants, however, have maintained that the passage to the house of the plaintiffs was unobstructed even after the installation of a gate and railings. As regards the installation of railings, it has been submitted that without enclosing the area possessed by the defendants in the suit land, the construction/installation of a gate was of no use. 15. Learned trial Court vide impugned order has directed the defendants to remove the railings installed over the suit land with further directions to SHO, Police Station, Ghumarwin to supervise the implementation the directions issued by the Court. This order has been passed by the learned trial Court by observing that the defendants had sought installation of a gate only and they had neither shown their intent of raising the railings nor had sought permission of the Court for such purpose. The contention of the defendants that the installation of a gate would have been redundant without installation of railings has been rejected by holding that the gate needs pillars or supporting structure for installation and not the railings. 16. As noticed above, the main bone of contention inter-se the parties is with respect to the passage to the house of the plaintiffs from the public road. Plaintiffs claim the existence of such passage in the shape of a motorable road on the strength of a compromise entered into between the parties in earlier Civil Suit No. 109- 1/2017 decided in the National Lok Adalat on 13.7.2019. A copy of compromise entered between the parties in Civil Suit No. 109-1/2017 has been placed on record. Plaintiffs claim the existence of such passage in the shape of a motorable road on the strength of a compromise entered into between the parties in earlier Civil Suit No. 109- 1/2017 decided in the National Lok Adalat on 13.7.2019. A copy of compromise entered between the parties in Civil Suit No. 109-1/2017 has been placed on record. There is a mention of construction of a path on the suit land by plaintiff No.1 with the consent of defendant No.1 but it has not been stated to be a motorable road. Even the dimensions or extent of the path referred to in said compromise deed have not been detailed. Indisputably, the earlier suit No. 109-1/2017 was compromised and settled between the parties on the basis of the aforesaid compromise. 17. Thus, prima-facie there is sufficient material to conclude that a passage existed to the house of the plaintiffs through the suit land. Even the learned trial Court while passing the order dated 5.8.2022 has observed so. 18. Learned trial Court had allowed the defendants to construct the gate with clear observations that right of ingress and egress available to the plaintiffs would not be obstructed. Though, there was no specific concession given to the defendants to raise the railings in addition to the gate, yet the reason for the necessity to raise the railings as projected by the defendants cannot be brushed aside. It cannot be said in generality that in a very case the installation of gate on an immoveable property will serve its purpose by its installation with the help of supporting pillars. It will depend in fact situation of each case. The purpose of installation of a gate is to secure some premises. In case the premises are exposed and open from all other sides, installation of a gate merely on one side is for no purpose. Thus, the installation of railings by the defendants in addition to the gate cannot per-se be said to be violation of the order dated 5.8.2022, passed by the learned trial Court. 19. What was required to be ascertained by learned trial Court while deciding CMA No. 587-6/2022 was whether the installation of a gate and railings obstructed the road or passage of the plaintiffs to approach their house from the main road? 19. What was required to be ascertained by learned trial Court while deciding CMA No. 587-6/2022 was whether the installation of a gate and railings obstructed the road or passage of the plaintiffs to approach their house from the main road? Learned trial Court did not consider such issue to be relevant and proceeded to pass the impugned order only by holding that the installation of railings by the defendants on the suit land was in violation of order dated 5.8.2022. The learned trial Court instead of holistically looking at the real issue involved got persuaded by application of literal interpretation of the term “violation of order” and thereafter proceeded to pass such a harsh order which amounts to virtually decreeing the suit of the plaintiffs. 20. I have not found any material where the plaintiffs have alleged complete obstruction to the passage available to their house, rather tone and tanor of their objection is that inconvenience has been caused to them by placement of railings by the defendants. 21. The rights of the parties are yet to be finally adjudicated upon. In the circumstances, as observed above, the impugned order needs to be interfered with in order to maintain equitable balance between the parties to the suit. 22. Learned Senior Counsel for the defendants also pointed out that the plaintiffs have already assailed the order dated 5.8.2022 passed by the learned trial Court by filing an appeal under Order 43 Rule 1 (r) of the Code, which is pending adjudication before the learned Appellate Court and for such reason also the learned trial Court should have restrained itself from passing the impugned order. The contention raised on behalf of the defendants is sustainable to the extent that till the order dated 5.8.2022 had not attained finality, the learned trial Court should not have shown haste in deciding CMA No. 587-6/2022 in Civil Suit No. 27-1/2022. 23. In light of above discussion, the petition is allowed. Impugned order dated 28.9.2022, passed by the learned Civil Judge, Court No.3, Ghumarwin, District Bilaspur in CMA No. 587-6/2022 in Civil Suit No. 27-1/2022 is set aside. Pending applications, if any, also stand disposed of.