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2025 DIGILAW 593 (HP)

Hujti Ram v. Yogesh Kumar

2025-04-02

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. The present petition has been preferred against the impugned judgment dated 09.05.2024 passed by the Additional District Judge, Chamba, whereby the well reasoned order dated 18.01.2024 passed by the learned Civil Judge, Chamba in Civil miscellaneous application No. 8 of 2024 titled Yogesh Kumar vs. Hujti has been set aside and the parties have been directed to maintain status quo qua nature of the suit property. 2. Heard counsel for the parties. Perused the pleadings. 3. The present respondent is the plaintiff before the trial Court. The respondent had filed a suit for permanent prohibitory and mandatory injunction. It is contended in the suit that insofar as the suit property is concerned, the parties to the lis i.e. present petitioner and respondent are joint owners in possession. Theproperty is stated to be un-partitioned inter se the co-sharers. The cause of action accrued in favour of the present respondent, when present petitioner started raising construction in December, 2023 on a portion of the suit land, which is joint. 4. In response thereto, the present petitioner averred that by virtue of a gift deed made by the original owner Smt. Amro Devi dated 05.02.2023, he became a co-owner on the suit land. In pursuance to the aforesaid gift deed, possession was delivered on the spot to the present petitioner. The present petitioner had obtained a demarcation from the Kanungo on 22.07.2023 qua the land of which he is raising construction. 5. It is further alleged in the response filed by the present petitioner that the father of the present respondent Sh. Madan Lal and his uncle Sh. Bhola Ram have already constructed their respective houses upon the suit land. The father of the plaintiff had raised construction upon the suit land despite not being a co-owner in the suit land. In order to legalize his possession, the present respondent had become a co-owner by virtue of a gift deed made by one of the owners Smt. Kaushlya Devi on 23.08.2023. . 6. Besides the aforesaid, it is further averred that insofar as the father of the respondent is concerned, on 06.01.2024, he moved an application before the Naib Tehsildar Dharwala to ascertain his possession. . 6. Besides the aforesaid, it is further averred that insofar as the father of the respondent is concerned, on 06.01.2024, he moved an application before the Naib Tehsildar Dharwala to ascertain his possession. On his request, the Patwari visited the spot and after measurement, gave a report that Madal Lal (father of the respondent) had constructed a three storeyed Pucca house over the suit land and the uncle of the respondent had also raised construction upon the suit land. The aforesaid facts qua raising of construction by the father and uncle of the respondent had been concealed in the plaint filed by the present respondent before the Trial Court. 7. In the aforesaid facts and attending circumstances, taking into account the fact that the present respondent had not approached the Court with clean hands and the settled position of law that a co-owner cannot restrain another co-owner from raising construction unless it amounts to ouster prejudicial to the interest of the co-owner, the application filed for grant of interim relief was rejected by the trial Court. 8. The aforesaid well reasoned order passed by the trial Court was set aside by the 1 st Appellate Court and parties were directed to maintain status quo qua nature of the suit property. 9. It is a well-settled position of law that an appeal against exercise of discretion is an appeal on principle. The Appellate Court therein will only interfere with a discretion if it is shown to have been exercised arbitrarily, capriciously, perversely or where the Court had ignored the settled principles of law regulating grant of interlocutory injunction. The Appellate Court will not re-assess the material and would not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. In this respect, reference can be made to judgment reported in 1990 (Supp) SCC 727 titled Wander Ltd. & Anr. Vs. Antox India Pvt. Ltd., decided on 26.04.1990, the relevant extract is reproduced as under:- “…...14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In this respect, reference can be made to judgment reported in 1990 (Supp) SCC 727 titled Wander Ltd. & Anr. Vs. Antox India Pvt. Ltd., decided on 26.04.1990, the relevant extract is reproduced as under:- “…...14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reasses the material and seek to reach a conclusion different from the one reasonably possible on the material. The appellate Court would normally not with justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court’s exercise of discretion. After referring to these principles Gajendragadker, J.in Printers (Mysore) Private Ltd. Vs. Pothan Joseph. (SCR 721). ….These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton ‘…. the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.” 10. Interference by the First Appellate Court in the case at hand has not been done on the well settled parameters delineated supra for interfering in an exercise of discretion by the Court of 1 st instance, therefore, the same can be faulted with. 11. The present petition has been preferred under Article 227 of the Constitution of India. The scope of jurisdiction of High Court under Article 227 of the Constitution has been expounded by the Hon'ble Supreme Court as under: (i) In Sadhana Lodh vs. National Insurance Co. 11. The present petition has been preferred under Article 227 of the Constitution of India. The scope of jurisdiction of High Court under Article 227 of the Constitution has been expounded by the Hon'ble Supreme Court as under: (i) In Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003)3 SCC 524 , it has been held as under:- “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.” (iii) In Garment Craft vs. Prakash Chand Goel, (2022)4 SCC 181 , it has been held as under:- “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute conclusion, for its own that of decision the on facts inferior court and or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC violation of fundamental principles of law or justice. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” 12. Thus, from the above stated exposition of law, it is clear that this Court has a restricted and limited jurisdiction to interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India, except to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. On the other hand in the supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. 13. In the case at hand, for the reasons stated herein above, I am of the considered view that a ground has been made out in the present petition for invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 14. In view of above, I find merit in the present petition and the same is allowed accordingly. Impugned judgment dated 09.05.2024 is quashed and set aside. Pending miscellaneous application(s), if any, shall also stand disposed of.