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2025 DIGILAW 219 (HP)

Dame Chand v. Chandi Dass

2025-02-27

VIVEK SINGH THAKUR

body2025
JUDGMENT : Vivek Singh Thakur, J. This appeal has been preferred against judgment dated26.02.2018 passed in Civil Appeal No.27 of 2017, titled as Chandi Dass vs. Dame Chand & others, decided by District Judge, Chamba Division Chamba, H.P., whereby judgment and decree dated 07.10.2017 passed by Civil Judge, Chamba, District Chamba, H.P., in Civil Suit No.151 of 2010, titled as Chandi Dass vs. Dame Chand & others, has been partially modified by passing a decree in favour of the plaintiff restraining the defendants from interfering in the suit land in any manner. 2. Parties to the lis are being referred as per their status in the Civil Suit for convenience, i.e. as plaintiff and defendants. 3. There are total eight defendants, but only defendants No.1, 3, 7 and 8 had contested the Civil Suit. Whereas, defendants No.2, 4 to 6 were proceeded ex parte. 4. Plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from interfering, causing nuisance, damage or taking forcible and illegal possession of the suit land comprised in Khata Khatauni Nos. 47/79, Khasra Nos. 116, 117/1, 120/1, 140/1, 219/1 kitta 5, measuring 09-14-00 bighas situated at Mauza Purthi Pargna Sach, Tehsil Pangi, District Chamba, H.P. The suit was dismissed by the Trial Court. 5. The appeal preferred by the plaintiff was partly decreed as referred supra. 6. Vide order dated 03.10.2019 appeal was admitted on following substantial questions of law:- “1. Whether the suit filed by the plaintiff for injunction and possession is maintainable, when the plaintiff is not in the possession of the suit land? 2. Whether the lower appellate court has wrongly interpreted the statements of witness PW-1, DW-1 and 2 in its wrong perspective and the same has caused injustice to the appellants? 3. Whether the entries in the Jamabandi are conclusive proof of ownership, without the possession? 4. Whether the injunction can be granted against the co-sharers, when there is dispute qua the possession of the land allotted in the partition? 5. Whether the judgment and decree passed by the learned lower appellate court is sustainable in the eyes of law when the same has been passed without the service of the appellants? 7. Learned counsel for the appellants has submitted that appellants were never served before the District Judge in appeal preferred by plaintiff and, therefore, impugned judgment passed by the District Judge is not sustainable. 8. 7. Learned counsel for the appellants has submitted that appellants were never served before the District Judge in appeal preferred by plaintiff and, therefore, impugned judgment passed by the District Judge is not sustainable. 8. To substantiate the aforesaid plea, learned counsel for the appellants has referred report of the Process Server recorded on the summons issued to the defendants through Mr.Rajiv Dharmani, Advocate, who was representing the contesting defendants in the Trial Court, wherein it has been reported that Mr.Rajiv Dharmani, Advocate, had refused to receive the summons by making a statement that he was not counsel in the appeal. The report was made on 01.01.2018 on the summons issued for 03.01.2018. He further submits that no summons were served upon the defendants, and the Advocate representing them was not authorized by them to contest the appeal. Therefore, there was no proper service and representation of the contesting defendants before the District Judge and, thus, impugned judgment and decree deserve to be set aside and the matter deserves to be remanded back to the District Judge for adjudication afresh. 9. Statement made by learned counsel for the appellants on 01.01.2018, with respect to refusing to receive the summons on the ground that he was not Advocate in the appeal, is on record of District Judge (Appellate Court). However, it is also noticeable that on 03.01.2018 firstly it was recorded by the District Judge that notices issued to the defendants, through their counsel appeared before the Trial Court, were received back unserved, but thereafter in the said order it has also been recorded that at that stage, Mr.Rajiv Dharmani, Advocate, appeared and sought time to seek instructions from his clients/defendants and, therefore, matter was adjourned for 16.01.2018 for further orders. 10. On 16.01.2018, Mr.Gaurav Bakshi, Advocate, had appeared as a vice counsel for Mr.Rajiv Dharmani, Advocate, seeking adjournment on the ground that original counsel was out of station on account of illness of his sister and the appearing counsel was without brief and was not in a position to address the arguments. Thereupon, matter was adjourned for 18.01.2018. On that day, again Mr.Gaurav Bakshi, Advocate, appeared and sought adjournment by stating that for non availability of brief, he was not in a position to address the arguments. Therefore, matter was adjourned for 20.02.2018. 11. Thereupon, matter was adjourned for 18.01.2018. On that day, again Mr.Gaurav Bakshi, Advocate, appeared and sought adjournment by stating that for non availability of brief, he was not in a position to address the arguments. Therefore, matter was adjourned for 20.02.2018. 11. On 20.02.2018, Mr.Rajiv Dharmani, Advocate, appeared for defendants and addressed the arguments, and after hearing the arguments, matter was adjourned for orders on 26.02.2018. On which day, impugned judgment has been passed. Now, it is true that Mr.Rajiv Dharmani, Advocate, had refused to receive the summons for 03.01.2018, but it is also a fact in record that on 03.01.2018 he appeared in the Court and, thereafter, on his behalf another counsel appeared as his vice and sought adjournment on 16.01.2018 and 18.01.2018, and on 20.01.2018 Mr.Rajiv Dharmani, Advocate, addressed the arguments. 12. Nothing has been placed on record with respect to any action taken by the defendants against Mr.Rajiv Dharmani, Advocate, for his appearance on their behalf if it was without any instructions, though now here in present appeal it has been contended that Mr.Rajiv Dharmani, Advocate, was not authorized by defendants to appear, only on the ground that Mr.RaJiv Dharmani, Advocate had refused to receive the summons and summons were not served upon the defendants and proper service was not effected upon them. 13. Once an Advocate appears and seeks time to have instructions from the defendants and thereafter continuously appeared on the subsequent dates either personally or through vice counsel seeking adjournments and, thereafter, addressed the arguments, it does not lie in the mouth of defendants that they were not served and they were unrepresented unless they took any action against the counsel, if he had appeared without their instructions. Neither Advocate has come forward claiming that he never appeared before the District Judge and/or not addressed the arguments before the District Judge nor any affidavit has been filed on behalf of or by the defendants that Mr.Rajiv Dharmani, Advocate, had appeared unauthorizedly without their instructions. Therefore, plea of the defendants on this count does not appear to be genuine. 14. Plaintiff has placed on record Jamabandi Ex.P-1 pertaining to the year 2005-06, wherein plaintiff Chandi Dass has been shown owner in possession of the suit land after order dated 11.12.2009 passed in partition proceedings by Revenue Authority and Mutation No.208 in this regard has been attested on 14.09.2010. 14. Plaintiff has placed on record Jamabandi Ex.P-1 pertaining to the year 2005-06, wherein plaintiff Chandi Dass has been shown owner in possession of the suit land after order dated 11.12.2009 passed in partition proceedings by Revenue Authority and Mutation No.208 in this regard has been attested on 14.09.2010. Suit was filed by the plaintiff on 27.09.2010. It has come in evidence of the plaintiff as well as the defendants that partition proceedings took place between the parties and in those partition proceedings suit land was allotted to the plaintiff. According to the contesting defendants the suit land was not to be allotted to the plaintiff in the partition proceedings and, therefore, they have filed suit/proceedings against the order passed in partition proceedings and also challenged the revenue entries. It has been duly admitted in the evidence that defendants laid challenge to the partition proceedings and revenue entries which was dismissed by the competent Court and, thereafter, no appeal against the same was ever preferred by the defendants. Therefore, allotment of land in partition proceedings attained finality. It has also been admitted by the defendants that prior to partition proceedings land was jointly owned and possessed by the plaintiff and defendants, but with further stand that plaintiff got the land wrongly allotted in his favour which was not in independent possession of the plaintiff and defendants were having independent possession of that portion of land. 15. It is not case of the defendants that excess land has been allotted to Chandi Dass. In case some land has been allotted to Chandi Dass, then to make good their share, corresponding land must have been allotted to the defendants. On this count also, defendants are completely silent in their pleadings as well as in their evidence. 16. Contesting defendants are denying title of the plaintiff by claiming that land is in their possession, but at the same time they are also admitting that land has been allotted to plaintiff in partition. Once they are claiming possession of the suit land owned and possessed by the plaintiff, cause of action arises for the plaintiff to file civil suit for permanent prohibitory injunction and, accordingly, the District Judge has passed decree in favour of the plaintiff and against the defendants. 17. The District Judge has interpreted and read the evidence in its right perspective. 17. The District Judge has interpreted and read the evidence in its right perspective. Though Jamabandi is not conclusive proof of ownership, but admittedly challenge laid to such revenue entries in the Jamabandi has failed and, thus defendants cannot take plea that entries recorded in the Jamabandi are not correct for not tilting in their favour. Once land has been partitioned in separate ownership and possession, co sharers lose their character as co-sharers or joint owners and they become independent owners of the partitioned land allotted to them and, therefore, injunction claimed by one of the earlier co-sharers, after having independent title as owners with possession, to restrain other earlier co-sharers who have been allotted separate land, is definitely maintainable. In such eventuality, it cannot be said that it is an injunction being prayed against the co-sharer. 18. Substantial questions of law referred hereinsupra are answered accordingly. 19. In view of above discussion, there is no merit in the appeal and, accordingly, the same is dismissed, so also pending application(s), if any.