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2025 DIGILAW 64 (HP)

Amar Singh v. Parkasho Devi

2025-01-07

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. 1. Present petition has been filed against the impugned order dated 27.03.2024, passed in Civil Misc. Appeal No. 2-D/XIV/2024, by the Additional District Judge-I, Kangra at Dharamshala, District Kangra, H.P. 2. Heard counsel for the parties, perused the pleadings and the impugned order appended along with the present petition. 3. The present petitioner is plaintiff before the trial Court. The suit land is admitted to be joint inter se the parties. The same has not been partitioned. The claim of the petitioner/plaintiff before the trial Court is that respondent/defendant with a view to grab the most valuable portion of the land is in hell-bent to uproot the ancestral house, cut the trees standing thereupon and to raise construction thereupon. 4. As per the respondent/defendant, vide Will dated 18.04.1992, one Shridhar, the predecessor-in-interest of the parties had willed an old abadi/house along with cow shed in favour of the respondent/defendant and similarly Shridhar had willed land in favour of the plaintiff and his brother, whereupon they had constructed their house. Mutation No.48 qua Will dated 18.04.1992 was sanctioned on 18.11.1992. The said mutation was upheld by the District Collector (ADM) Kangra, vide order dated 20.08.2011. 5. During the last rains, a part of the old abadi/house of the respondent/defendant had become unsafe for human dwelling and therefore, on the recommendation of the Welfare Department, funds were allotted to the respondent/defendant by the Gram Panchayat for the renovation of the collapsed portion. The photographs of the old/abadi produced by the parties revealed that the house is in dilapidated condition. The respondent/defendant has also produced certificate dated 14.11.2022 issued by the Pradhan Gram Panchayat Dadham to the effect that in previous rainy season, the house of the defendant/respondent had completely been damaged and the same requires repair, wherefor money had been sanctioned by the Government. 6. With respect to the grant made by the government, a Certificate dated 20.12.2023 issued by the Pradhan, Gram Panchayat Dadham had been produced, wherein it had been stated that for not constructing fallen house within the stipulated time, grant had been cancelled. However, subsequently a fresh grant had been sanctioned and a sum of Rs.50,000/- had been sanctioned for construction of the house. The same is evident from letter dated 16.09.2022, issued by the Tehsil Welfare Officer Shahpur, District Kangra, H.P. 7. However, subsequently a fresh grant had been sanctioned and a sum of Rs.50,000/- had been sanctioned for construction of the house. The same is evident from letter dated 16.09.2022, issued by the Tehsil Welfare Officer Shahpur, District Kangra, H.P. 7. In the aforesaid facts and attending circumstances, the trial Court had ordered status quo to be maintained qua nature, construction and possession of the suit land. However, on appeal and keeping in view the said well settled-position of law that a mere construction by the defendant/respondent (one of the co-sharer in the suit land) alone would not entitle the plaintiff/petitioner to seek injunction, especially when the plaintiff has not specified the alleged best, valuable portion of the suit land and has not pleaded that the proposed construction would amount to his ouster from the suit land and/or would adversely affect his possession or enjoyment or accustomed user thereof, the status quo order passed by the trial Court was vacated. 8. The appeal in the case at hand against exercise of discretion by the trial Court is an appeal on principle. One of the grounds available for interference would be ignoring settled principles of law for grant of an interlocutory injunction. On this account, no fault can be found with the impugned judgment passed by the First Appellate Court. 9. In this respect, it would be appropriate to refer to the judgment of Apex Court in 1990 (Supp.) SCC 727 , titled Wander Ltd. & Anr. vs. Antox India Pvt. Ltd. The relevant extract is being reproduced hereinbelow:- “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 court 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 reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally 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. 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 Gajendragadkar, J. in Printers (Mysore) Private Ltd. v.Pothan Joseph: (SCR 721) These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston 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. The appellate judgment does not seem to defer to this principle.” 10. The present petition has been preferred under Article227 of the Constitution of India. 11. 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. 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 re- weigh 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 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 restrictive and limited jurisdiction to interfere under Article 227 of the Constitution of India, except to set right grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice. 13. Thus, from the above stated exposition of law, it is clear that this Court has restrictive and limited jurisdiction to interfere under Article 227 of the Constitution of India, except to set right grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice. 13. In the facts and attending circumstances of the case at hand, no ground for interference under Article 227 of the Constitution of India is made out, in the case at hand. 14. In view of the aforesaid, present petition is dismissed being devoid of merit and so also the pending application(s), if any.