Himachal Pradesh High Court
Meemo Devi vs Saroj Kumari on 23 December, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CMPMO No.207 of 2016.
Date of decision: 23.12.2016
Meemo Devi .....Petitioner/Defendant.
Versus
Saroj Kumari .....Respondent/plaintiff.
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt Whether approved for reporting?1Yes For the Petitioner : Mr.Ajay Sharma, Advocate. For the Respondent: Mr.Naresh Kaul, Advocate. Tarlok Singh Chauhan, Judge (Oral).
The petitioner/defendant (hereinafter referred to as the petitioner) has filed this petition under Article 227 of the Constitution of India against the judgment dated 21.03.2016 passed by the learned Additional District Judge-II, Kangra at Dharamshala, Camp at Jawali.
2. It is not in dispute that the plaintiff/respondent (hereinafter referred to as the respondent) alongwith suit for declaration and injunction had filed an application under Order 39 Rules 1 and 2 CPC which was partly allowed by the learned trial Court and the petitioner was restrained from mortgaging or creating charge over the land comprised in Khata No.137, Khatauni No.179, Khasra No.103, land measuring 0-40-23 HMs. to the extent of 3449/4023 shares i.e. 0-34-49 HMs., situated in Mohal Bhanyari, Mauza Bhali, Tehsil Jawali, District Kangra, H.P. during the pendency of the suit. However, as regards the relief of injunction restraining the petitioner from dispossessing the Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 21:48:00 :::HCHP 2 respondent or from transferring it by way of sale, gift or exchange the same was declined.
.
3. This constrained the respondent to file an appeal before the learned first appellate Court, who vide impugned judgment dated 21.03.2016 has allowed in entirety the application filed by the respondent and thereby has restrained the petitioner from of dispossessing the respondent from suit land and also from alienating the suit land or creating charge over it in any manner whatsoever. It is rt this judgment which has been assailed by way of instant petition mainly on the ground that once the learned trial Court had found the petitioner to be in possession of the suit land, then no injunction could have been granted in favour of the respondent without first upsetting these findings.
I have heard the learned counsel for the parties and gone through the material placed on record.
4. At the outset, I may observe that the manner, in which the order passed by the learned trial Court has been set aside, is not at all satisfactory as the first appellate Court has virtually gone astray without appreciating the real controversy in issue. It was on the basis of the material placed on record that the learned trial Court had arrived at a finding that it was the petitioner, who was in possession of the suit land and had, therefore, granted injunction to that extent, as would be clear from para-7 of the order which reads thus:-
"7. In regard to relief of injunction restraining the respondent from dispossessing the applicant, perusal of record shows that the applicant is herself residing at Pragpur which is clear from Marriage Certificate and copy of Parivar Register of Ramesh Chand due to which at this stage it appears that the applicant is herself out of possession due to which she cannot be ::: Downloaded on - 15/04/2017 21:48:00 :::HCHP 3 dispossessed from the suit land. Further, when applicant is appearing out of possession of the suit land then in said case .
relief in regard to injunction restraining respondent from dispossessing the applicant cannot be granted in her favour at this stage."
5. Evidently, the learned first appellate Court without discussing the aforesaid findings and further without even arriving at an of independent conclusion that the respondent is in possession of the suit land restrained the petitioner from dispossessing the respondent, who rt was not even in possession of the suit land. To say the least, the findings recorded by the learned first appellate Court are perverse and, therefore, cannot be sustained in the eyes of law.
6. Consequently, this petition is partly allowed and the impugned judgment is set aside to the extent it restrains the petitioner from interfering with the possession of the respondent, who otherwise is not in possession of the suit land.
7. It is clarified that though the respondent is directed not to interfere in the peaceful possession of the petitioner over the suit land, however, at the same time, the petitioner is restrained from mortgaging, transferring the suit property by way of sale, gift or exchange or creating charge over it during the pendency of the suit.
8. The petition is allowed in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
December 23, 2016. (Tarlok Singh Chauhan), (krt) Judge.
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