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2025 DIGILAW 259 (HP)

Madho Kailash v. Prem Singh

2025-03-03

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. The subject matter of the dispute between the parties is land measuring 8-1-0 bigha comprised in Khasra No.6144 contained in Khatauni No.258 of Khata No.204 as entered in the Jamabandi for the year 2001-2002 of Phati Kharahal, Kothi Kais, Tehsil and District Kullu, H.P. (hereinafter referred to as the suit land). 2. The appellant before this Court was the plaintiff before the trial Court. The appellant in the plaint filed before the trial Court claimed joint ownership and possession over the suit land with the defendant along with other co-sharers. According to the appellant/plaintiff, the cause of action arose on 15.06.2010, when, as per the appellant, the respondent/ defendant with an intention to grab valuable, specific portion of the suit land exceeding his share started digging the suit land for the purpose of raising construction thereupon without getting the suit land partitioned. 3. The respondent/defendant, in his written statement, on merits stated that he had purchased his share measuring 0-8-0 bigha vide sale deed dated 30.01.2006 from one Tehal Singh, son of Shri Bhagh Chand and as per respondent/defendant, a specific portion of the suit land was delivered to the respondent/defendant towards the North of the land of Shri Satish Pathania, Jr.E. According to the respondent/defendant, subsequent to purchase of the land, respondent/defendant had fenced his area and constructed one storey building thereupon. The construction, as per the respondent/defendant was raised over an area measuring 0-3-10 bigha out of the total share of 0-8-0 bighas. 4. On the basis of the pleadings, 10 issues were framed and for the purpose of adjudication of the present lis, only five issues which are relevant are being reproduced herein below for a ready reference:- “1. Whether the suit is jointly owned by the parties to the suit, as alleged?OPP 2. Whether the defendant is threatening to raise construction over the suit land which is joint and has yet not been partitioned, as alleged?OPP 3. If issue Nos.1 & 2 are proved in the affirmative, whether the plaintiff is entitled to the relief of permanent perpetual injunction, as alleged?OPP 4. Whether in the alternative the plaintiff is entitled to the relief of mandatory injunction?OPP 5. Whether the suit land stands already partitioned and the parties are in settled possession of their respective shares? OPD” 5. If issue Nos.1 & 2 are proved in the affirmative, whether the plaintiff is entitled to the relief of permanent perpetual injunction, as alleged?OPP 4. Whether in the alternative the plaintiff is entitled to the relief of mandatory injunction?OPP 5. Whether the suit land stands already partitioned and the parties are in settled possession of their respective shares? OPD” 5. Post conclusion of the trial, the trial Court on an appreciation of the pleadings, evidence led held that the suit land is jointly owned and possessed by the parties and has not been partitioned. The onus to prove that the suit land stands partitioned and that the parties are in settled possession, lay upon the respondent/defendant. According to the trial Court, since the respondent/ defendant had not led any evidence to prove partition of the suit land and had not further examined any witnesses, in whose presence the partition had taken place, therefore, the trial Court concluded that the parties were not in settled possession, as was being claimed by the respondent/defendant. Other than the aforesaid, an appreciation of evidence, the trial Court came to the conclusion that the appellant/plaintiff had succeeded in proving the fact that the respondent/defendant was raising construction on the suit land. In the aforesaid facts and attending circumstances of the case, after placing reliance upon the decisions referred to, details whereof have been given while deciding issue No.3 by the trial Court, the trial Court granted the relief of permanent prohibitory injunction in favour of the appellant/plaintiff. Besides the aforesaid, the trial Court granted relief of mandatory injunction in favour of the appellant/defendant as according to the trial Court, the appellant/plaintiff had at the earliest objected to the construction being raised by the respondent/defendant by filing the present suit. Morever, upon institution of the same had immediately got a Local Commissioner appointed and also had prayed for grant of police assistance. 6. The First Appellate Court concurrently held that the suit land is jointly owned and possessed by the parties and has not been partitioned. However, based on the admissions of the appellant/plaintiff, in his cross-examination, the First Appellate Court came to the conclusion that all the co-sharers of the suit land are in separate exclusive possession of the suit land qua their respective shares in the suit land. However, based on the admissions of the appellant/plaintiff, in his cross-examination, the First Appellate Court came to the conclusion that all the co-sharers of the suit land are in separate exclusive possession of the suit land qua their respective shares in the suit land. Besides the aforesaid, in the facts and attending circumstances of the case, the First Appellate Court held that since the respondent/defendant was not disturbing the Hissedari possession of the appellant/plaintiff, i.e., 1 bigha 8 bishwa area which in cross-examination was admitted by the appellant/plaintiff to be in his exclusive possession, the First Appellate Court was of the view that no relief of permanent prohibitory and mandatory injunction could be granted in favour of the appellant/plaintiff. 7. In the aforesaid backdrop, the present second appeal was filed. The same was admitted on 23.06.2015 on the following substantial question of law:- “1. Whether on account of misreading, miss-appreciation and misconstruction of the law and facts as well as the oral and documentary evidence available on record, the judgment and decree under challenge in the main appeal being perverse and vitiated is not legally sustainable?” 8. Learned Senior Counsel appearing on behalf of the appellant/ plaintiff submits that insofar as the findings returned with respect to separate possession is concerned, the same suffers from perversity as according to learned Senior Counsel, the same is based on no evidence. As per learned Senior Counsel, the onus to prove the same, i.e., issue of separate exclusive possession was upon the respondent/defendant. No evidence in this respect was ever led by the respondent/defendant. Learned Senior Counsel appearing on behalf of the appellant/plaintiff further submits that whenever there is a partition without an intervention of a Revenue Officer, the private party is required to apply to the Revenue Officer for order of confirmation/affirmation of the partition. According to learned Senior Counsel, the mandatory procedure in this respect has been provided for in the Himachal Pradesh Land Revenue Act in terms of Sections 35 and 135 thereof. As per the provisions of the aforesaid Act, the Revenue Officer to whom an application for confirmation/affirmation of the partition has been filed, is mandatorily required to inquire into the fact of the reported partition. As per the provisions of the aforesaid Act, the Revenue Officer to whom an application for confirmation/affirmation of the partition has been filed, is mandatorily required to inquire into the fact of the reported partition. Since in the facts and circumstances of the case at hand, the aforesaid procedure has not been followed, therefore, no partition in the eyes of law has taken place and the parties in possession of the parcels of land under some arrangement would not depict partition by metes and bounds and they would be continued to be reflected as co-owners. In this respect reliance can be placed upon the decision of this Court in Mangat Ram vs. Gulat Ram (since deceased) through his LRs. Jagdeep Kumar and Ors., Latest HLJ 2011 (HP) 274 (Relevant Paragraphs-19 & 27). 9. Other than the aforesaid, learned Senior Counsel appearing on behalf of the appellant/plaintiff, in order to buttress the aforesaid submission has placed reliance upon the decision of this Court in Joginder Singh & Others vs. Suresh Kumar and Others, Latest HLJ 2015 (HP) 260 (Relevant Paragraphs-4, 5, 15, 17 & 18). As per the learned Senior Counsel appearing on behalf of the appellant/plaintiff, raising construction upon the best, valuable part of suit land by the respondent/defendant is in violation of the interests of the other co-sharers and is an assertion of hostile title in himself. Moreso, when the respondent/defendant, though claims a specific share, but has not placed on record the Tatima/Plan made at the time of getting the sale effected in favour of the respondent/defendant 10. Learned Senior Counsel appearing on behalf of the appellant/plaintiff further submits that even if a co-sharer holds separate possession of parcels of joint land without a corresponding intent to sever the joint status of community of joint owners, it does not confer a right upon a co-sharer in separate possession to assert his separate ownership, therefore, according to learned Senior Counsel, a joint owner would be owner of a specific share in the entire joint property but would not be entitled to claim separate ownership of any specific and particular portion of the suit land till such time the property remains joint. In this respect, reliance has been placed upon the decision of this Court in Ashok Kapoor vs. Murtu Devi, 2016 (1) Shim. LC 207 (Relevant Paragraphs-9, 10 & 11). 11. In this respect, reliance has been placed upon the decision of this Court in Ashok Kapoor vs. Murtu Devi, 2016 (1) Shim. LC 207 (Relevant Paragraphs-9, 10 & 11). 11. Per contra, learned Senior Counsel appearing on behalf of the respondent/defendant submits that in cross-examination, the appellant/ plaintiff has categorically admitted separate exclusive possession. The exclusive possession, raising of construction by other co-owners, other than the respondent/defendant, has not been assailed by the appellant/plaintiff. According to learned Senior Counsel appearing on behalf of the respondent/defendant, while allowing the suit of the appellant/plaintiff, the trial Court has placed reliance upon the judgment passed in Om Parkash & Others vs. Chhaju Ram, AIR 1992 Punjab and Haryana 219 . According to learned Senior Counsel appearing on behalf of the respondent/defendant, the aforesaid judgment has been overruled in case reported in Bachan Singh vs. Swaran Singh , 2000 (2) S.L.J. 1184. (Relevant Paragraphs-12, 15 & 16). 12. Besides the aforesaid, learned Senior Counsel appearing on behalf of the respondent/defendant submits that, in the case at hand, all the co-sharers of the suit land, without there being any legal partition, had raised construction over specific portions of the land held by them in terms of their shares and in such eventuality the appellant/plaintiff cannot be permitted to object to the raising of construction by the respondent/ defendant on the ground that the land being owned in joint possession is stated to be not partitioned in accordance with law. Other than the aforesaid, learned Senior Counsel appearing on behalf of the respondent/defendant contends that it is not the case of the appellant/plaintiff that the respondent/defendant had raised or is raising construction over and above the share exclusively held by the appellant/plaintiff in terms of his share in the suit land. In this respect, reliance has been placed upon the decision of this Court in Prem Lal and Ors. vs. Amar Chand, Latest HLJ 2020 (HP) Suppl. 496. (Paragraph-9). 13. According to learned Senior Counsel appearing on behalf of the respondent/defendant, the respondent/defendant being in separate exclusive possession of the suit land to the extent of his share, is entitled to raise construction once the suit land is in the separate exclusive possession of all the co-sharers to the extent of their shares. 14. I have heard learned counsel for the parties and perused the record. 15. 14. I have heard learned counsel for the parties and perused the record. 15. It has been correctly held by both the Courts that the suit land has not been partitioned. The said finding of fact is not being disputed in the present appeal. The aforesaid findings call for no interference. Insofar as the contention of respondent/defendant qua all the co-sharers being in separate possession to the extent of their share in the suit land is concerned, suffice it to state that the said version was put to the appellant/plaintiff in cross-examination. The effect of putting the said version in the cross-examination of the plaintiff reflects that contrary stand of the appellant/plaintiff is being disputed. The plaintiff in his cross-examination admits being in exclusive possession of 1 bigha 8 bishwa of land, i.e., to the extent of his share in the suit land after purchasing the same from different co-sharers. Besides the aforesaid, insofar as the co-owners Partap and Shyam Lal are concerned, it is admitted by the appellant/plaintiff in his cross-examination that they have raised construction over the separate parcels of land held by them in terms of their share in the suit land. When the other co-sharers were raising construction, the appellant/plaintiff had never objected to the same. Other than the aforesaid, it has further been admitted by the appellant/plaintiff in his cross-examination that all the co-sharers in the suit land are in separate possession to the extent of their respective shares. Reference in this respect can be made to the decision of the Hon’ble Apex Court in Arvind Singh vs. State of Maharashtra, 2021(11) SCC 1 . Relevant extract is being reproduced herein below:- “62 ….. …. …. “15. … … … 16. … … … A Division Bench of the Patna High Court in Karnidan Sarda v. Sailaja Kanta Mitra, 1940 SCC OnLine Pat 288 : AIR 1940 Pat 683 has laid down that it cannot be too strongly emphasised that the system of administration of justice allows of cross-examination of opposite party’s witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted. … … ...” 16. … … ...” 16. Insofar as the judgments upon which the learned Senior Counsel appearing on behalf of the appellant/plaintiff has placed reliance, the same are clearly distinguishable and not applicable to the facts of the case at hand. In Mangat Ram’s case (supra), partition effected without intervention of Revenue Officers came up for consideration. The Court after appreciating the facts and attending circumstances of the case at hand correctly held that partitions effected without intervention of Revenue Officers can only be given effect to post reporting of the same to the Revenue Officials concerned in terms of Sections 35, 135 of the Himachal Pradesh Land Revenue Act. In the case at hand, it is an admitted position as the same has not been assailed and has been correctly held by both the Courts below that no partition qua the suit land had taken place. Hence, the aforesaid judgment in Mangat Ram’s case (supra) is not applicable to the facts and attending circumstances of the case at hand. 17. Similarly, Joginder Singh’ Ram case (supra), on which reliance has been placed by learned Senior Counsel appearing on behalf of the appellant/plaintiff, is clearly distinguishable as from a perusal of Paragraph-19 of the said judgment, it is clearly evident that the defendant therein was not in exclusive possession of the vacant land over which he intended to raise construction. In the said case, the suit filed for permanent prohibitory injunction was decreed by the trial Court thereby restraining the defendant therein from raising construction of house over a portion of the unpartitioned joint property. However, therein the First Appellate Court, based on an instrument of partition held that the land stood partitioned. However, in the regular second appeal preferred by the plaintiff therein, the appeal was allowed and the suit decreed as the Court was of the view that there is no evidence forthcoming to suggest that the parties to the lis are in exclusive possession of the suit land to the extent of their shares on the basis of the instrument of partition relied upon by the First Appellate Court. The aforesaid judgment is not applicable to the case at hand, as in the present case exclusive possession of the parties has been admitted by the plaintiff. 18. The aforesaid judgment is not applicable to the case at hand, as in the present case exclusive possession of the parties has been admitted by the plaintiff. 18. Last but not least, the judgment passed in Ashok Kapoor’s case (supra) relied upon by the appellant is not applicable to the facts of the case at hand. It is clearly distinguishable on facts. In the aforesaid facts, an interim order restraining the defendant from raising construction as affirmed by the First Appellate Court was assailed by the defendant therein before this Court. A perusal of Paragraph-49 of the said judgment categorically reflects that this Court had refused to interfere in the interim order passed by the trial Court as affirmed by the First Appellant Court as therein the plea taken by the defendant was one of ouster of the other co- owners. In the case at hand, there is no plea of ouster being raised. 19. The First Appellate Court, after placing reliance upon the decision of the Hon’ble Apex Court, in Kochunju Nair vs. Koshy Alexander and others, AIR 1999 Supreme Court 2272 and in Shiv Chand vs. Manghru and Others, Latest Himachal Law Judgment 2007 (HP) 413 , has correctly come to the conclusion that the Hissedari possession of the appellant/plaintiff, i.e., 1 bigha 8 bishwa, which is admittedly in the exclusive possession of the plaintiff, is not being disturbed by the respondent/defendant while raising construction over the land exclusively held in terms of his share in the suit land. The relief of permanent prohibitory and mandatory injunction was correctly not granted by the First Appellate Court in favour of the appellant/plaintiff. 20. In view of the above, I am of the considered view that there is no misreading, misappreciation and misconstruction of the oral evidence, specifically the cross-examination of the appellant/plaintiff. Accordingly, the present appeal is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.