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2025 DIGILAW 381 (HP)

Parmeshwari Dutt v. Kailash Dev

2025-03-17

SATYEN VAIDYA

body2025
JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioner has laid challenge to order dated 07.12.2024, passed by learned Additional district Judge, Una in Civil Miscellaneous Appeal No. 35 of 2024, whereby the appeal of respondent herein under Order 43 Rule 1 (r) of the Code of Civil Procedure (for short ‘the Code’) has been allowed and the order dated 22.07.2024, passed by learned Civil Judge, Court No. II, Amb, District Una, H.P., in CMA No. 175-VI-24, has been set-aside. 2. Petitioner is the plaintiff in Civil Suit No. 611 of 2024, pending adjudication before learned Civil Judge, Court No. II, Amb, District Una, H.P. He has sought a decree of permanent prohibitory injunction against respondent/defendant to the effect that the respondent/defendant be restrained from raising any construction over and changing the nature of land comprised in Khewat No. 45, Khatauni No. 85, Khasra No. 2 in Mohal Amoklan Sadoo, Sub Tehsil Bharwain, District Una, H.P. ( for short, “suit land”) till partition of the same. 3. As per petitioner/ plaintiff, the suit land is joint between the parties and respondent/defendant without getting the land partitioned had started extending illegal threat to raise construction on the suit land as per his wishes. It has been averred that the requests made by the plaintiff were ignored by defendant and the defendant had not only started collecting the construction material but had also started excavation over the suit land. It has also been submitted that the defendant has threatened to use the best portion of suit land by ousting the plaintiff . 4. Defendant is contesting the suit of the plaintiff and has filed written statement. Objections as to maintainability of suit, estoppel, locus-standi of plaintiff to file suit, valuation etc. have been taken. The plaintiff has also been accused of having not approached the Court with clean hands. As per defendant, the suit land already stood partitioned vide order dated 23.01.2015 of competent authority and the instrument of partition had also stood prepared and finalized. It has also been stated that the appeal filed against order of partition, in which plaintiff was one of the parties, also stood dismissed on account of non-prosecution. 5. Alongwith plaint, plaintiff also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, seeking ad interim injunction against defendant. It has also been stated that the appeal filed against order of partition, in which plaintiff was one of the parties, also stood dismissed on account of non-prosecution. 5. Alongwith plaint, plaintiff also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, seeking ad interim injunction against defendant. Learned Trial Court allowed the application of plaintiff for interim relief vide order dated 22.07.2024 and directed both the parties to maintain status quo qua nature and possession of the suit land till final disposal of the suit. 6. Respondent/defendant assailed the aforesaid order by filing an appeal under Order 43 Rule 1(r) of the Code. Learned Additional District Judge, Una, vide impugned order has allowed the appeal by setting aside the order of learned Trial Court. Consequently, the application of plaintiff under Order 39 Rules 1 and 2 of the Code, has been dismissed. 7. I have heard learned counsel for the parties and have also gone through the documents on record carefully. 8. Learned counsel for the petitioner/ plaintiff has contended that the learned Appellate Court was not justified in setting aside the well reasoned order of learned Trial Court. He submitted that the petitioner/plaintiff had satisfied the three way test and hence was entitled to interim injunction as prayed by him. 9. On the other hand, learned counsel for the respondent/defendant has supported the order on the ground that the petitioner/plaintiff had intentionally misrepresented the facts before the Court only for the purpose of obtaining interim order. It is contended that petitioner/plaintiff had willfully omitted to provide clear details about the partition proceedings with respect to suit land despite knowledge. 10. Noticeably, petitioner/plaintiff has filed the suit on the premise that the suit land is joint and the respondent/defendant was trying to usurp best portion of the same without getting it partitioned. In response, respondent/defendant alleged that the order qua partition of suit land had been passed by the competent authority way back in the year 2015. The instrument of partition had also been prepared and implemented. 11. Learned Appellate Court has found prima facie substance in the defence raised by the respondent/defendant by looking into the documents placed on record. In response, respondent/defendant alleged that the order qua partition of suit land had been passed by the competent authority way back in the year 2015. The instrument of partition had also been prepared and implemented. 11. Learned Appellate Court has found prima facie substance in the defence raised by the respondent/defendant by looking into the documents placed on record. Reference has been made to the order of partition dated 23.01.2015 and subsequent order dated 12.02.2015, passed by Collector, Sub Division, Amb, whereby the appeal filed against partition order by petitioner/plaintiff and other co-sharers was dismissed in default. It has also been noticed that the instrument of partition was prepared on 19.03.2024 and separate shares stood allotted to the co-owners. 12. Learned Appellate Court has also found that plaintiff had suppressed material facts in plaint and when the plaintiff was confronted with factual position, the petitioner/plaintiff by way of replication for the first time admitted the factum of partition having taken place, though he alleged the same to have been done wrongly. 13. Further, learned Appellate Court found that the pleadings of petitioner/plaintiff lacked in better and material particulars. 14. On consideration of available record, the findings recorded by learned Appellate Court cannot be said to be illegal or perverse. Defendant has raised a specific plea that the suit land stood partitioned and the partition had been implemented. The appeal filed against the order of partition was dismissed in default. Petitioner/plaintiff is stated to have filed an application for restoration of appeal and in such application some stay order is stated to have been passed by learned Appellate Court. 15. Thus, there is sufficient prima facie material to suggest that partition of the suit land has already taken place. Merely, because some stay order has been passed by the Appellate Revenue Court recently will not mean that the proceedings which have already been concluded would automatically stand invalidated. 16. Petitioner/plaintiff has also not been able to explain as to why he did not approach the learned trial court with correct factual position. The inferences drawn by learned appellate court that petitioner/plaintiff intentionally suppressed the material facts is not unjustified. 17. Further, the petitioner/plaintiff has made bald pleadings as to the attempt of respondent/defendant in usurping best portion of the suit land. The inferences drawn by learned appellate court that petitioner/plaintiff intentionally suppressed the material facts is not unjustified. 17. Further, the petitioner/plaintiff has made bald pleadings as to the attempt of respondent/defendant in usurping best portion of the suit land. Noticeably, it has not been specified as to why exclusivity is attached to that portion of suit land which allegedly was being usurp by defendant. 18. Thus, the petitioner/plaintiff had failed to make out a prima facie case. He was also not able to establish existence of balance of convenience and irreparable loss in his favour. 19. The petitioner/plaintiff on account of his conduct is also not entitled to equitable relief of injunction. 20. In result, the petitioner/plaintiff has not been able to point out any illegality, perversity or error of jurisdiction in the impugned order. 21. Accordingly, there is no merit in the petition and the same is dismissed with no order as to costs. 22. However, it is made clear that the observations made hereinabove shall have no bearings on the merit of the case and shall be construed for the disposal of the present petition only. 23. Pending miscellaneous application(s), if any, shall also stand disposed of.