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2025 DIGILAW 486 (HP)

State of H. P. v. Parwati Devi

2025-03-25

SATYEN VAIDYA

body2025
JUDGMENT : (Satyen Vaidya, J.) This Regular Second Appeal has been filed by the appellants against judgment and decree dated 07.06.2014, passed by learned Additional District Judge, (1), Mandi, H.P. in Civil Appeal No. 111/2012, whereby the judgment and decree dated 16.07.2012, passed by learned Civil Judge (Jr. Divn.) Court No. 4, Mandi, H.P. in Civil Suit No. 102/2011/09 has been set aside. 2. Parties hereafter shall be referred by the same status as they held before learned trial Court. Respondent herein is the plaintiff, who had filed a suit against defendants (appellant herein) seeking following reliefs:- i. That the invasion over the suit land by the defendants be declared as illegal. ii. That the defendants be restrained from interfering with the enjoyment of peaceful ownership and possession the plaintiff be granting perpetual injunction. iii. That the defendants be restrained from their illegal invasion over the suit land by granting mandatory inunction in favour of the plaintiff. iv That the defendants be directed not to put up any structure or dig the soil over the suit and of plaintiff. 3. The defendants contested the suit by raising preliminary objections as to maintainability of suit, estoppel, want of notice under Section 80 CPC, want of cause of action and non-joinder & misjoinder of parties. On merits, defendants alleged that the road namely Grodu More-Chahari-Chir-Badanu was being constructed for public benefit. The allegation of the plaintiff that some part of the land owned by her was also being utilized by defendants for construction of road, was not denied. However, it was submitted that the defendants were doing so with the consent of Mr. Nokhu Ram, who was one of the co-owners of the land. 4. Learned Trial Court framed the following issues:- 1. Whether the plaintiff is entitled for the decree of declaration, as prayed for? OPP 2. Whether the plaintiff is entitled for the decree for permanent prohibitory and mandatory injunction, as prayed for ?OPP 3. Whether the suit for the plaintiff is estopped by his own act and conduct, as alleged? OPD 4. Whether the suit is not maintainable, as alleged? OPD 5. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD 6. Whether this Court has no jurisdiction to try the present suit, as alleged? OPD 7. Whether the suit is bad for non-joinder and misjoinder of necessary parties, as alleged? OPD. OPD 4. Whether the suit is not maintainable, as alleged? OPD 5. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD 6. Whether this Court has no jurisdiction to try the present suit, as alleged? OPD 7. Whether the suit is bad for non-joinder and misjoinder of necessary parties, as alleged? OPD. 8. Relief. 5. Issues No. 1, 2, 4 and 7 were decided in affirmative and rest of the issues were decided in negative. The suit of the plaintiff was, accordingly, dismissed. 6. Noticeably, the learned Trial Court held that the plaintiff was one of the co-owners of the suit land and defendants had raised the construction of road from suit land without the consent of the plaintiff. The right of plaintiff to seek declaration and permanent prohibitory and also the mandatory inunction was upheld. However, the suit was dismissed on the basis of findings on issues No. 4 and 7, whereby, learned Trial Court had held the suit to be bad for non-joinder of necessary parties. It was held that since all the co-owners were not impleaded as parties in the suit, the decree could not be passed in favour of the plaintiff. 7. Admittedly, the defendants accepted the judgment and decree passed by learned Trial Court and did not assail the same. Plaintiff, however, challenged the decree in appeal by availing remedy under Section 96 of the Code of Civil Procedure. The appeal has been decided by learned Additional District Judge, (1), Mandi, H.P., vide impugned judgment and decree. The judgment and decree passed by learned Trial Court has been set aside and decree of permanent prohibitory injunction restraining the defendants from interfering in the suit land by way of raising any construction of road thereon except in due course of law has been passed. 8. Aggrieved against judgment and decree passed by learned First Appellate Court, the defendants now are in regular second appeal before this Court. 9. This appeal was ordered to be admitted for hearing on following substantial questions of law, vide order dated 23.02.2015.:- 1. Whether the findings of Ld. First Appellate court below are vitiated and are illegal for want of proper pleadings and proof? 2. 9. This appeal was ordered to be admitted for hearing on following substantial questions of law, vide order dated 23.02.2015.:- 1. Whether the findings of Ld. First Appellate court below are vitiated and are illegal for want of proper pleadings and proof? 2. Whether if one of co-shares in affidavit claim exclusive possession over suit land so utilized for construction of road by the appellant/Department and without implicating him as necessary party, suit of plaintiff could succeed or not? 3. Whether decree of permanent prohibitory injunction is maintainable by the co-sharers when construction work of public road has been already carried out by the appellant department on spot with the implied consent of plaintiff as well as other co- sharers (i.e. son) which is functional till now by spending tax payees amount? 4. Whether suit can be decreed with out the partitioned of the land in between the Co-shares. 5. Whether suit can be entertain beyond the period of limitation. 10. The matter was heard on 13.03.2025 and was reserved for judgment. However, at the time of dictating judgment, this Court found that additional substantial questions of law was required to be framed as the learned First Appellate Court had not returned any findings on issues No. 4 and 7 framed by learned Trial Court. The matter was thereafter listed on 22.03.2025 under the Head ‘Speaking to Minutes’ and the aspect perspective by this Court was put across to the parties for response. On 24.03.2025, the matter was adjourned for today i.e. 25.03.2025, at the request of the learned counsel for the parties. 11. Learned counsel representing both the sides are not opposed to framing of additional substantial question of law as under:- “Whether the judgment and decree passed by learned First Appellate Court is sustainable without there being any finding on issues No. 4 and 7. 12. Learned counsel for the parties have been heard again. I have also perused the record. 13. As noticed above, learned Trial Court though had upheld the right of plaintiff to seek declaration, permanent prohibitory and mandatory injunction, yet her suit was dismissed on the basis of findings returned on issues No. 4 and 7. It was held that since the other co-owners of the suit land were not impleaded as parties, the suit was bad for non-joinder of necessary parties and hence not maintainable. 14. It was held that since the other co-owners of the suit land were not impleaded as parties, the suit was bad for non-joinder of necessary parties and hence not maintainable. 14. Noticeably, the appeal before learned First Appellate Court was filed by the plaintiff challenging the findings on issues No. 4 and 7. There was no cross or separate appeal by the defendants. 15. Though, learned First Appellate Court has allowed the appeal of the plaintiff, but from the perusal of the findings returned by learned First Appellate Court, it clearly transpires that there is no discussion on the legality or otherwise of the findings of learned Trial Court on issues No. 4 and 7. Thus, learned First Appellate Court has not exercised jurisdiction vested in it in accordance with law. The said Court was required to either affirm or set aside the findings of learned Trial Court on issues No. 4 and 7, but since there is no discussion on the said issues, no such affirmation or findings could be recorded by learned First Appellate Court. 16. Thus, I am of the considered view that the additional substantial question of law is required to be answered in negative. The impugned judgment and decree dated 07.06.2014, passed by learned Additional District Judge, (1), Mandi, H.P. in Civil Appeal No. 111/2012, cannot be sustained without their being any findings on the issues No. 4 and 7. 17. In view of what has been held above, there is no need to deal with other substantial questions of law as framed by this Court on 23.02.2015. 18. In result, the appeal is allowed. The judgment and decree dated 07.06.2014, passed by learned Additional District Judge, (1), Mandi, H.P. in Civil Appeal No. 111/2012 is set aside. The case is remanded back to the learned Additional District Judge, (I), Mandi, H.P. for decision of Appeal No. 111/2012 afresh strictly in accordance with law. 19. Records of the case be sent back forthwith. 20. Parties are directed to appear before learned Additional District Judge(I), Mandi, H.P. on 23.04.2025.