Himachal Pradesh High Court
Les Raj Alias Des Raj vs Dalip Dutt & Anr on 15 November, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 279 of 2018.
Date of decision: 12.11.2018.
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Les Raj alias Des Raj .....Appellant/plaintiff Versus Dalip Dutt & Anr. ....Respondents/defendants Coram:
For the Appellant r to The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 No. : Mr. R. L. Chaudhary, Advocate.
For the Respondents : Mr. V. S. Chauhan, Advocate.
Tarlok Singh Chauhan, Judge (Oral).
The plaintiff is the appellant, who aggrieved by the judgment and decree passed by the learned trial Court and affirmed by the learned first Appellate Court has filed the instant appeal. (The parties hereinafter referred to as the 'plaintiff' and the 'defendants').
2. Briefly stated the facts giving rise to the present appeal are that the plaintiff filed a civil suit (i.e. Civil Suit No. 67 of 2017) before the learned trial Court for permanent prohibitory injunction and mandatory injunction on the ground that the parties 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 15/11/2018 23:00:04 :::HCHP 2 to the suit were joint owners in possession of the suit land and defendant No. 1 had purchased a portion of the suit land and a .
house situated over it from one of the co-owners Shri Thakru alias Thakur Dass vide sale deed No. 363 dated 17.07.2008. It was averred that the plaintiff had earlier filed a civil suit No. 66 of 2009 before the learned trial Court, which was withdrawn by him in Civil Appeal No. 64 of 2011 with the permission to file a new suit on the same cause of action. The permission to withdraw the suit was granted to the plaintiff by the learned District Judge, Kullu vide order dated 03.05.2012. It was alleged that the defendants were trying to encroach upon the valuable portion of the suit land and were trying to raise construction forcibly over some portion of the suit land without getting the same and the house partitioned. It was also alleged that the defendants had raised upper storey of the building and had stacked stones over the vacant portion of the suit land during the pendency of the suit and prayed for restraining the defendants from encroaching upon the valuable portion of the land comprised in Khasra No. 902 and 908, khata/khatauni No. 20/27, measuring 0-01-62 hectares situated in Up Muhal Manali, Kothi Manali, Tehsil Manali, District Kullu, H.P. and to demolish the construction raised by them over the suit land and further for directions to remove the stones stacked by the defendants over the vacant portion of the suit land.
::: Downloaded on - 15/11/2018 23:00:04 :::HCHP 33. The defendants resisted and contested the suit by filing written statement and had taken the preliminary objections .
qua maintainability, locus standi, cause of action, suppression of material facts, non-joinder of necessary parties and res-judicata.
On merits, the defendants had alleged that the suit land and the house situated over the suit land are not joint and the revenue entries are contrary to the factual position on the spot. The defendants had admitted that defendant No. 1 had purchased a single storeyed house from Shri Thakur Dass vide Sale Deed No., 363, dated 17.07.2008. It was further stated that Thakur Dass was absolute owner of the house, which was purchased by defendant No. 1 and the land underneath the said house was in exclusive possession of Thakur Dass and the same was allotted to him in a family partition. It was further alleged that the plaintiff had also constructed a single storey house over the suit land and has covered area more than his share over the suit land. It was also alleged that the plaintiff despite having knowledge that defendant No. 1 had purchased the house and land from Shri Thakur Dass had not made the defendant No. 1 as party to the earlier Civil Suit No. 66 of 2009 and the said suit was filed against defendant No. 2 only.
The defendants had denied that they were raising construction over the suit land and contended that they had already completed construction prior to filing of the previous suit No. 66 of 2009 by ::: Downloaded on - 15/11/2018 23:00:04 :::HCHP 4 the plaintiff and the said fact stands supported from the local commissioner report dated 26.08.2010. It was further alleged that .
the plaintiff had acquiesced in the construction done by defendant No. 1 and presently the defendants were not raising any construction on the suit land.
4. The plaintiff filed replication to the written statement wherein averments made in the plaint had been reiterated.
5. On the basis of the pleadings of the parties, the learned trial Court on 08.01.2015, framed the following issues:
1. Whether the suit land is jointly owned and possessed by the parties, as claimed? OPP
2. Whether the defendants are causing unlawful and unreasonable inference in the suit land without the same being properly and appropriately partitioned, as alleged?OPP
3. Whether the defendants have raised any construction and have stacked stones in vacant portion of the suit land during the pendency of the suit land unlawfully, as alleged?OPP
4. Whether the suit of the plaintiff is not maintainable as alleged? OPD
5. Whether the plaintiff has got no cause of action, as alleged? OPD
6. Whether the plaintiff has not come to the court with clean hands and has suppressed material facts, as alleged? OPD
7. Whether suit of the plaintiff is barred by res-judicata, as alleged? OPD ::: Downloaded on - 15/11/2018 23:00:04 :::HCHP 5
8. Whether the co-sharers in the suit land were in possession separately as per their shares on the basis of family partition, as alleged? OPD .
9. Whether the house in dispute on the suit land was constructed by previous owner Shri Thakur alias Thakur Dass and was sold to the defendant No. 1 vide sale deed No. 363, on 17.07.2008 and since then the said defendant is in exclusive ownership and possession of the said house, as claimed?OPD-1
6. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit of the plaintiff and the appeal filed against the same met with the same fate as it was dismissed vide judgment and decree passed to this effect on 01.01.2018.
7. Aggrieved and dis-satisfied by the judgments and decrees concurrently passed by the learned Courts below, the plaintiff has filed the instant Regular Second Appeal mainly on the ground that even though the defendant No. 1 had purchased 0-00- 41 hectares land from the joint ownership but later had raised construction over 0-00-70 hectares of land, therefore, the excess land over which the construction has been raised belongs to the plaintiff.
I have heard learned counsel for the parties and have gone through the records of the case.
::: Downloaded on - 15/11/2018 23:00:04 :::HCHP 68. It is the admitted case of the parties that the suit land was jointly owned and possessed by the parties and one Shri .
Thakur Dass, one of the co-sharers of the suit land had sold his land in favour of defendant No. 1 i.e. respondent. It is further the admitted case of parties that there was a single storey house with lintel roof over the land which was purchased by defendant No. 1 and that he had completed construction over the suit land in the year 2008-09, The plaintiff had also constructed his house adjoining to the house of defendant No. 1. Therefore, in such circumstances no fault can be found with the judgments and decrees concurrently passed against the plaintiff whereby they placed reliance upon the judgment of this Court in Jaishi Ram vs. Kamla Devi & others, Latest HLJ 2008 HP 342, wherein it has been held as under:-
"If construction of the co-sharers is already existing on the spot then the option open to the other co-sharers is not a sit for injunction, rather a suit for partition."
9. That apart, it has specifically come in cross-
examination of the plaintiff that the property of Jai Ram, uncle of the plaintiff, had, in fact, been inherited by his daughters and is being cultivated by them. The plaintiff also admitted that Thakur Dass used to cultivate the land which was in his possession, meaning thereby that it was under some family ::: Downloaded on - 15/11/2018 23:00:04 :::HCHP 7 arrangement/partition that the co-sharers had settled themselves and were in respective possession over the different parcels of the .
land. Once that be so, then it was not open to any of the co-sharers to disturb the arrangement without the consent of others except by filing the suit for partition.
10. Lastly, it would be noticed that the plaintiff had earlier filed a suit, which was subsequently withdrawn by him with liberty to file the fresh suit. However, in the said suit, the Court had appointed a local commissioner, who had visited the spot on 26.08.2010 and had found no fresh construction and had reported that there exists three storeys at the spot. This clearly supports the contention of the defendants that the construction, in fact, was completed prior to filing of the previous suit and further corroborates his version that he is in exclusive possession of the house and land purchased by him from Thakur Dass since the execution of the sale deed No. 363, dated 17.07.2008.
11. It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law. Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judges Bench decision of the Hon'ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari ::: Downloaded on - 15/11/2018 23:00:04 :::HCHP 8 (deceased) by LRs (2001) 3 SCC 179 wherein it was observed as follows:
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"15......The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
12. What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus:
"12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase "'substantial question of law"
as it was employed in the last clause of the then existing Section 110 ::: Downloaded on - 15/11/2018 23:00:04 :::HCHP 9 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question .
of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a r substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere ::: Downloaded on - 15/11/2018 23:00:04 :::HCHP 10 question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
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13. Finally, in paragraph 14, the Hon'ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which reads thus:
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
14. The findings recorded by the learned Courts below are based on the correct appreciation of the pleadings and evidence and are pure findings of fact which are immune from challenge in second appeal.
::: Downloaded on - 15/11/2018 23:00:04 :::HCHP 1115. No question of law much less substantial question of law arises for consideration in this appeal.
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16. Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs.
Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan)
th
12 November, 2018. Judge
(sanjeev)
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