Himachal Pradesh High Court
Ishwar Singh vs Lal Singh And Another on 18 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 99 of 2009 Reserved on: November 8, 2016 Decided on: November 18, 2016 ___________________________________________________________________ .
Ishwar Singh ...Appellant
Versus
Lal Singh and another ....Respondents
___________________________________________________________________ Coram Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting?1 ___________________________________________________________________ of For the Appellant: Mr. G.C. Gupta, Senior Advocate with Ms. Meera, Advocate.
For the respondents: Mr. Y.P. Sood, Advocate, for respondent No.1.
None for respondent No.2.
rt ___________________________________________________________________ Sandeep Sharma, Judge Instant regular second appeal under section 100 CPC is directed against judgment and decree dated 10.12.2008 passed by learned Additional District judge, Shimla in Civil Appeal No.35-S/13 of 2007, modifying judgment and decree passed by learned Civil Judge (Junior Division), Court No. V, Shimla, on 27.7.2007, whereby suit of respondent No. 1-plaintiff (hereinafter, 'plaintiff') for grant of permanent prohibitory and mandatory injunction was decreed partly, whereby appellant-defendant No.1(hereinafter, 'defendant') was restrained from changing the nature of the land comprised in Khasra No. 573 situated at Mauja Sangti, Tehsil and District Shimla, HP. However, with regard to remaining portion of 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:34:45 :::HCHP 2suit land i.e. Khasra Nos. 444 and 570, suit of the plaintiff was dismissed. Suit was also dismissed qua grant of mandatory injunction.
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2. Briefly stated facts as emerge from the record are that the plaintiff filed suit in the court of Civil Judge (Junior Division), Court No.5, Shimla HP, averring therein that plaintiff and defendant are cosharers of land comprising Khewat No. 46, Khatauni Nos. 356 of and 357, Khasra Nos. 444, 570 and 573, kita 3 measuring 00-00- 98 hectares situated at Mauza Sangti, Tehsil and District Shimla, rt HP. Plaintiff further averred that share of plaintiff in suit land is 11/33 which comes to 00.00.33 hectares and share of defendant No.1 is of 16/33 which comes to 00.00.53 hectares. It is further averred in the plaint that the plaintiff and defendant No. 1 also own land adjoining to suit land. Plaintiff is owner of land in Khasra No. 441 (old Khasra No. 217/125/3) whereas defendant is owner in possession of land comprised in Khasra 442 (Old No. 217/124/2) and upon these lands, plaintiff and defendant No. 1 have constructed their houses. Plaintiff, further claimed that the suit land is joint between the parties and, defendant, in order to use the best portion of suit land started changing its nature without the same being validly partitioned. He further alleged that defendant, who is influential person, with a view to grab the best portion of the land threatened to cover area in excess of his share and despite his ::: Downloaded on - 15/04/2017 21:34:45 :::HCHP 3 resistance, collected large quantity of building material on the spot, as a result of which he was compelled to file the suit.
3. Defendant resisted the plaint by filing written statement and .
admitted that land in dispute is recorded in joint ownership of defendant and plaintiff but he submitted that though land is in joint ownership but same is not jointly possessed by parties to the suit and defendant is in exclusive possession of Khasra No. 573 of measuring 00-00-24 hectares, out of suit land, whereas he is in exclusive possession of Khasra Nos. 444 and 570, kita 2 measuring rt 0-00-74 hectares. Defendant claimed that his share comes to 16/33 which is equivalent 0-00-65 hectares and not 0-00-53 hectares, as alleged by plaintiff. Defendant further averred that he has not exceeded in the construction of building beyond his share and he has already raised construction over Khasra 444 and 570. Similarly, he stated that neither the plaintiff has raised any construction over Khasra No. 573 nor he intends to so as the same is in possession of plaintiff in the revenue record. In the aforesaid background, defendant sought dismissal of suit.
4. Learned trial Court on the basis of pleadings of parties, settled following issues on 9.5.2005:
"1-A Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as alleged? 1-B Whether the plaintiff is entitled for the relief of mandatory injunction, as alleged? OPP
2. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD ::: Downloaded on - 15/04/2017 21:34:45 :::HCHP 4
3. Whether the plaintiff has no cause of action to file the present suit? OPD
4. Relief."
5. Learned trial Court, vide judgment and decree dated .
27.7.2007, decreed the suit of the plaintiff for grant of permanent propitiatory injunction restraining defendant from changing nature of land in Khasra No. 573, whereas another prayer for relief of mandatory injunction restraining defendant from raising of construction over another portion i.e. Khasra nos. 444 and 570 was rejected and further the suit for mandatory injunction was also dismissed.
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6. Plaintiff being aggrieved with the judgment and decree passed by learned trial Court filed an appeal under Section 96 CPC before Additional District judge, Shimla, which came to be registered as Civil Appeal No. 35-S/13 of 2007. Learned Additional District judge, Shimla vide judgment and decree dated 10.12.2008, allowed the appeal preferred by plaintiff and restrained the defendant No. 1 from making any further construction so as to cover any more land on Khasra Nos. 444 and 570, though he allowed defendant to raise upper stories on the part already covered by the defendant. In the aforesaid background, defendant approached this Court by way of Regular Second Appeal, praying therein for setting aside judgment and decree passed by first appellate Court.
::: Downloaded on - 15/04/2017 21:34:45 :::HCHP 57. Instant Regular Second Appeal was admitted by this Court on 20.3.2009, on the following substantial question of law:
"Whether the First Appellate Court below has mis-read the .
documents Ext. DX, D-4 and PW-1/A in which parties have been recorded in separate possession of the land equivalent to their respective shares after settlement."
8. Mr. GC Gupta, learned Senior Advocate duly assisted by Ms. Meera, Advocte, vehemently argued that the judgment of first of appellate Court is not sustainable in the eye of law as the same is not based on correct appreciation of the evidence available on record, rather same is based on conjectures and surmises and as rt such deserves to be quashed and set aside. While referring to judgment and decree of Additional District judge, Mr. Gupta contended that first appellate Court while deciding Point No. 1, wrongly calculated shares of the parties and arrived at wrong conclusion that the share of the defendant No.1 comes to 0-00-65 hectares and not 0-00-74 hectares. With a view to substantiate his aforesaid argument, he also invited attention to the written statement of defendant before learned trial Court, wherein he specifically stated that his share comes to 0-00-65 hectares, which was further increased by mutation of exchange, DX attested in his favour, whereby proforma defendant transferred her share in his favour. He further stated that learned first appellate Court failed to take into consideration the settled proposition of law that in case a person is in exclusive possession of joint land, he can not be ::: Downloaded on - 15/04/2017 21:34:45 :::HCHP 6 restrained from raising construction thereon and party can approach revenue agency, if aggrieved, for partition of the properties. He further stated that learned court below wrongly came .
to conclusion that in case defendant is allowed to raise construction, plaintiff would be prejudiced as in the partition he may be given land which may not suit him. He further stated that bare perusal of evidence adduced on record by the respective parties of suggests that the Court below has not properly appreciated the evidence, as a result of which erroneous findings have come on rt record causing great injustice to the defendant, who is admittedly in exclusive possession of suit land. In the aforesaid background, Mr. Gupta prayed that judgment and decree passed by first appellate Court may be set aside.
9. Mr. YP Sood, counsel representing the plaintiff, supported judgment passed by first appellate Court. Mr. Sood while referring to the judgment passed by first appellate Court submitted that same is based on correct appreciation of revenue record adduced on record by the parties, wherein wrong calculation carried by learned trial Court has been rightly rectified by the first appellate Court and as such there is no scope of interference, whatsoever, by this Court and appeal deserves to be dismissed. Mr. Sood, while referring to Ext. DX and Ext. PW-1/A, argued that it is undisputed that suit land is recorded in joint ownership of the parties and parties to suit ::: Downloaded on - 15/04/2017 21:34:45 :::HCHP 7 are in possession of specific portions of the suit land. He further stated that no party can be allowed to raise construction over and above his share. Mr. Sood while placing reliance on Ext. D-4 and .
PW-1/A, vehemently argued that out of suit land, which is 0-00-98 hectares, admittedly, defendant's share comes to 0-00-65 hectares, that too after adding share of proforma defendant, but learned trial Court while making calculation, committed material illegality of /mistake, while concluding that share of defendant No. 1 comes to 0-00-74 hectares, which is apparently wrong, as has been held by rt first appellate Court, while accepting the appeal of the plaintiff.
While concluding his arguments, Mr. Sood made this Court to go through oral and documentary evidence led by parties to suggest that plaintiff successfully proved on record that defendant is making attempt to raise construction over and above his share and as such he was entitled to the relief of permanent propitiatory injunction as claimed in suit before learned trial Court. Mr. Sood sought dismissal of the appeal in the aforesaid background.
10. I have heard the parties and gone through the record.
11. This Court carefully perused pleadings as well as evidence adduced on record, be it ocular or documentary, perusal whereof suggests that parties to the suit are in joint ownership of the suit land, but they are in exclusive possession of specific portions of the suit land. Plaintiff has claimed himself to be in possession of ::: Downloaded on - 15/04/2017 21:34:45 :::HCHP 8 Khasra No. 573 measuring 0-00-24 hectares out of suit land whereas defendant has claimed to be in possession of Khasra Nos.
444 and 573 Kita 2 measuring 0-00-74 hectares out of suit land.
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But perusal of revenue record placed on record suggests that suit land in total is measuring 0-00-98 hectares, wherein in the column of ownership, parties to suit have been recorded in joint ownership.
Plaintiff is in possession of 11/33 share and defendant in of possession of 16/33 share and proforma defendant has been shown to be joint owner of 6/33 shares. Perusal of Ext. DX i.e. copy rt of mutation of transfer suggests that share of proforma defendant stands entered in the name of defendant No.1, as a result of which total share of defendant comes to 16+6=22 meaning thereby he became entitled to 2/3rd of share and plaintiff to 1/3rd share in the suit land. But, this Court after carefully perusing Ext. DX and Ext.
D4 as well as Ext. PW-1/A found that learned trial Court committed grave mistake while calculating share of the parties, and wrongly came to conclusion that share of defendant No.1 comes to 2/3rd i.e. 0.00.74 hectares and plaintiff to the extent of 0.00.24 hectares.
Perusal of pleadings and documents suggests that total suit land is measuring 0-00-98 hectares and as per own admission of parties, plaintiff is recoded to the extent of 11/33 shares and defendant No.1 to the extent of 16/33 shares, whereas proforma defendant is owner to the extent 6/33 shares. But thereafter, vide Ext. DX, share ::: Downloaded on - 15/04/2017 21:34:45 :::HCHP 9 of proforma defendant was also added to the share of defendant No.1 as a result of which, his (defendant) share increased to the extent of 22/33 which comes to 2/3rd of the total land. In view of .
addition of share of proforma defendant, defendant No.1 became joint owner to the extent of 2/3rd share in suit property and plaintiff remained owner of 1/3rd share. Now, if 1/3rd share of plaintiff out of total suit land i.e. 0-00-98 hectares is calculated, it comes out to be of roughly 0-00-33 hectares, whereas share of defendant No.1, after addition of share of proforma defendant comes out to be 0-00-65 rt hectares but learned trial Court while making calculation on the basis of revenue record, wrongly calculated shares of the parties and wrongly held that the defendant No.1 is entitled to use land to the extent of 0.00.74 hectares, which is admittedly more by 0-00-09 hectares than his admissible share in the joint property. Hence, this Court sees no illegality and infirmity in the judgment passed by first appellate Court, wherein it rightly detected miscalculation having been committed by learned trial Court, holding defendant No.1 entitled to share of 0.00.74 hectares, which is more than his admissible share.
12. Since, defendant No.1 is only entitled to 0-00-65 hectares, land out of total suit land, first appellate Court rightly came to the conclusion that plaintiff is entitled to 0.00.09 hectares more land from Khasra Nos. 570 or 444, or in part from both to make up his ::: Downloaded on - 15/04/2017 21:34:45 :::HCHP 10 share which comes to 0.00.33 hectares. As has been observed above that it is admitted case of the parties that plaintiff is owner to extent of 11/33 shares and defendant No. 1 to the extent of 16/33 .
shares, which was increased to 22/33 after addition of share of proforma defendant. On the basis of aforesaid admitted case of parties, plaintiff was rightly held entitled to 0.00.09 hectares more land by the first appellate Court.
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13. Hence, this Court sees considerable force in the reasoning given by the first appellate Court that allowing the defendant to rt construct on any portion on Khasra Nos. 444 and 570 even within his share may result in prejudice to plaintiff, who is entitled to 0.00.09 hectares in addition to land measuring 0.00.24 hectares, which is in his exclusive possession, to complete his share. It is also not disputed that over Khasra N0. 573 measuring 0.00.24 hectares, plaintiff has exclusive possession and in the event of partition between the parties, he would be getting further 0.00.09 hectares from Khasra Nos. 570 or 444, or in part, from both Khasra number, to make up his share, hence, first appellate Court rightly restrained defendant No.1 from making any further construction so as to cover any more land on any part of Khasra Nos. 444 and 570.
14. Hence, this Court, after carefully examining the documentary evidence especially Exts. DX, D-4 and PW-1/A, is unable to accept contention of defendant that first appellate Court misread and ::: Downloaded on - 15/04/2017 21:34:45 :::HCHP 11 misinterpreted the aforesaid documents, rather this Court is fully convinced and satisfied that the first appellate Court rightly appreciated aforesaid documents and rectified miscalculations done .
by learned trial Court holding defendant entitled to 0.00.74 hectares land out of the total suit land.
15. Substantial question of law is answered accordingly.
16. Hence, there is no illegality or infirmity in the judgment and of decree passed by first appellate Court and accordingly same is upheld and substantial question of law is answered accordingly.
rt Regular Second Appeal is dismissed.
(Sandeep Sharma) Judge November18, 2016 Vikrant ::: Downloaded on - 15/04/2017 21:34:45 :::HCHP