Himachal Pradesh High Court
Joginder Singh & Others vs Suresh Kumar & Others on 24 February, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 516 of 2003.
Date of Decision: 24th February, 2015.
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Joginder Singh & Others .........Appellants.
Versus
Suresh Kumar & Others ..........Respondents.
Coram
Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting1? Yes.
For the appellants: Mr. Bhupender Gupta, Senior
Advocate Ms. Charu Gupta,
r Advocate.
For the respondents: Mr. G. D. Verma, Senior Advocate
with Mr. B.C. Verma, Advocate for
respondents No. 1(a) to 1(f).
_________________________________________________________
Dharam Chand Chaudhary, J. (Oral)
Plaintiffs are in second appeal before this Court. They are aggrieved by the judgment and decree passed by learned Additional District Judge, Kangra at Dharamshala in Civil Appeal No.70-K/03 on 2.12.2003, whereby he reversed the judgment and decree passed by learned Sub-Judge 1st Class, Kangra, District Kangra in Civil Suit No.144/99 and dismissed the suit.
Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 17:38:25 :::HCHP -2-2. The subject matter of dispute in the present lis is a parcel of land measuring 0-07-96 hectares .
comprised under Khata No.26, Khatauni No.34 and Khasra No.187, 190, to the extent of 15/24 shares, situate in Mohal Pehgan, Mauza Sahoura, Tehsil and District Kangra as per entries in the Jamabandi for the year 1997-98 Ex.P-1/D-1.
3. The common ancestor of the parties to the suit was Sunka. Satya Devi Proforma respondent No.2 herein (plaintiff No.1 in the trial Court) is widow of one Rasila son of said Shri Sunka whereas deceased plaintiffs Likhu Ram and Tulsi Ram, predecessor-in-interest of appellants No.1 to 4 and 6 (a) to 6(e) were also sons of said Shri Sunka. Similarly, deceased defendant Dhani Ram, the predecessor-in-interest of respondents 1(a) to 1(f) was also son of said Shri Sunka. As per the entries in Jamabandi for the year 1997-98 Ex.P-1/D-1, the parties are joint owner-in-possession of the suit land to the extent of their respective shares as reflected in this document.
::: Downloaded on - 15/04/2017 17:38:25 :::HCHP -3-4. The suit land bearing Khasra No.190 is a big plot and is recorded as 'Ger Mumkin Abadi' in the .
Jamabandi Ex.P-1/D-1. The parties to the suit admittedly have their residential houses already constructed in existence over a portion thereof. Besides this, vacant land is also available on the spot adjoining to the houses of the parties to the suit when the plaintiffs claim the same to be in their joint possession with defendants, as per the version of the later, the same stands partitioned and the vacant land as per the possession of the parties to the suit fell in their respective shares during the partition. He, therefore, has claimed that whatever construction he intends to raise is over that portion of the suit land, which in the partition fell in his share. The plaintiffs, however, have come forward with the version that the suit land is still un-partitioned and as such in joint possession of the parties to the suit.
5. The defendant with a view to grab the same over and above his share started collecting construction ::: Downloaded on - 15/04/2017 17:38:25 :::HCHP -4- material to start construction work over a portion thereof. They objected to such unlawful activities on his .
part and when he refused to desist from carrying out construction, they filed the suit and obtained ad interim injunction. He allegedly raised construction upto plinth level forcibly and in utter disregard to the ad interim injunction passed by learned trial Court.
6. It is with the above pleadings, the parties had undergone trial and learned Trial Court has framed the following issues:
"1. Whether the plaintiffs are entitled to injunction, as prayed for? OPP
2. Whether the suit has been properly valued?
OPP
3. Whether the plaintiffs have no cause of action? OPD
4. Whether the plaintiffs have no locus standi to sue? OPD
5. Whether the suit is barred on account of act, conduct and acquiescence on the part of the plaintiffs? OPD.::: Downloaded on - 15/04/2017 17:38:25 :::HCHP -5-
6. Whether the plaintiffs have suppressed the material facts? OPD
7. Whether the plaintiffs have not come to the .
Court with clean hands? OPD
8. Whether the suit is bad for multifariousness and mis-joinder of cause of action? OPD
9. Relief.
7. One of the plaintiffs namely Shri Tulsi Ram himself has stepped in the witness-box as PW-1 and also placed reliance on the documentary evidence.
8. On the other hand, the defendant has himself stepped in the witness box as DW-2 and also examined Shri Kripal Singh, Superintendent, office of Tehsildar Shahpur, District Kangra as DW-1 to prove the partition proceedings and order of partition.
9. Learned trial Court on appreciation of the pleadings of the parties and evidence produced on both sides has held that the suit land is un-partitioned and joint property of the parties to the suit and as the defendant was found to have started raising ::: Downloaded on - 15/04/2017 17:38:25 :::HCHP -6- construction of a house over a portion thereof forcibly, hence decreed the suit for the relief of permanent .
Prohibitory Injunction.
10. Aggrieved by the judgment and decree passed by learned trial Court, the defendant had assailed the same in the lower appellate Court. Learned lower appellate Court while arriving at a conclusion that the suit land stands partitioned amongst the co-sharers and that the suit could have not been decreed has reversed the judgment and decree passed by the trial Court and dismissed the suit vide judgment and decree under challenge before this Court in the present appeal.
11. The legality and validity of the judgment and decree under challenge has been assailed on several grounds, however, mainly that the oral as well as documentary evidence produced by the parties on both sides has not been appreciated in its right perspective and rather misconstrued and misinterpreted.
The nature of the suit land bearing Khasra No.190 being ::: Downloaded on - 15/04/2017 17:38:25 :::HCHP -7- Abadi could have not been partitioned. The lower appellate Court is stated to have erroneously relied .
upon the documents Ex.DW-1/A to DW-1/G to conclude that the suit land stood partitioned. The instrument of partition Ex.DW-1/G speaks about the joint-ness of the suit land between the parties, however, this document is stated to be misconstrued and mis-appreciated.
12. The appeal has been admitted on the following substantial questions of law:-
"1. Whether the Lower Appellate Court has taken erroneous view of law in holding that Khasra No.190, subject matter of the suit, which was classified as "Ger Mumkin Abadi", stood partitioned between the parties as per the order of partition and instrument of partition, ignoring the provisions of HP Land Revenue Act that the jurisdiction to partition such land does not lie with the revenue authorities?
2. Whether the Lower Appellate Court has acted with material illegality and irregularity in misreading the material documents which ::: Downloaded on - 15/04/2017 17:38:25 :::HCHP -8- proved that Khasra No.190, even after drawing of instrument of partition was kept joint? Has not the Lower Appellate Court .
acted beyond its jurisdiction to set aside the decree for injunction, whereby the plaintiffs-
appellants claimed the restraint order for changing the suit land by raising permanent structure by the defendant-respondent?
13. Mr. Bhupender Gupta, learned Advocate, assisted by Ms. Charu Gupta, Advocate has r Senior vehemently argued that the suit land bearing Khasra No.190 being 'Ger Mumkin Abadi' could have not been ordered to be partitioned by Assistant Collector 1st Grade and also that as per the so called instrument of partition Ex.DW-1/G, the same as well as the suit land bearing Khasra No.187 is joint of the parties to the suit i.e. Rasila Ram, the husband of plaintiff No.1, five shares, Likhu Ram, Tulsi Ram, plaintiffs No.2 and 3 together with their brother Brij Lal to the extent of 15 shares and Jhadu ::: Downloaded on - 15/04/2017 17:38:25 :::HCHP -9- Ram, predecessor-in-interest of the defendant to the extent of 4 shares.
.
14. On the other hand, Shri G.D. Verma, learned Senior Advocate assisted by Mr. B.C. Verma, Advocate, while repelling the contentions so raised by Mr. Gupta, has strenuously argued that a co-sharer has a legal right to raise construction over the joint land even if the same is un-partitioned and the construction so raised shall abide by the partition thereof ultimately takes place.
According to Mr. Verma, the suit land stands partitioned and defendant intends to raise the construction over a portion thereof in his exclusive possession. He has also placed reliance on the judgments in Nagesh Kumar versus Kewal Krishan, AIR 2000 HP, 116, Bachan Singh versus Swaran Singh, AIR 2001, Punjab and Haryana, 112, Lal Chand Bhardwaj versus Jagdish Kumar & Another Latest HLJ (HP) 777 and Tarsem Singh & others versus Prakash Kaur, AIR 2002, Punjab and Haryana, 258.
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15. Admittedly, as per the statement Ex.DW-1/B, dated 18.1.1975, the land including the suit land was .
agreed to be partitioned having due regard to the possession of each share holders over the same. The instrument of partition Ex.DW-1/G speaks about the order of partition passed by Assistant Collector 1st Grade on 22.10.1975. Though the said order has not been produced in evidence by either party, however, the order Ex.D-3 passed by learned Divisional Commissioner, Dharamshala in revision petition reveals that the said petition was filed against this order. The revision petition was dismissed on 24.9.1982 with the observations that the aggrieved party may file an appeal, if so advised.
However, no appeal seems to be preferred and as such Assistant Collector closed the proceedings vide order dated 15.3.1983 Ex.DW-1/C. The proceedings, no doubt, seem to have attained the finality, however, there is no evidence that the partition so arrived at was given effect in the revenue record for the reason that in the ::: Downloaded on - 15/04/2017 17:38:25 :::HCHP
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Jamabandi Ex.P-1/D-1, the suit land is still shown joint of the parties to the suit along with other co-sharers to the .
extent of their respective shares. Even if Ex.DW-1/G is to be taken as instrument of partition, it is not known that on the basis thereof possession was delivered to the parties on the spot and the instrument of partition prepared thereafter as required under Sections 133 & 134 of the H.P. Land Revenue Act. There is also a considerable force in the arguments addressed on behalf of the appellants-plaintiffs that even if Ex.DW-1/G is to be taken as the instrument of partition, the parties to the suit are still in joint possession of the suit land to the extent of their respective shares though it stands partitioned so far as other co-sharers therein were concerned.
16. Learned Trial Court, therefore, has not committed any illegality and irregularity while arriving at a conclusion that the suit land is joint of the parties and the plaintiffs are also owners thereof to the extent of their ::: Downloaded on - 15/04/2017 17:38:25 :::HCHP
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respective shares. Learned Trial Court has mis-construed and mis-appreciated the documentary evidence more .
particularly Ex.DW-1/A to DW-1/G because no evidence is forth coming to suggest that the parties to the suit are in exclusive possession of the suit land to the extent of their shares on the basis of the so called instrument of partition Ex.DW-1/G. This document specifies only their respective shares in the suit land and no where establish their exclusive and separate possession over the suit land.
17. It is well settled that a co-sharer has every right, title and interest in the joint property even if not in actual and physical possession thereof. The possession of one co-sharer in joint property amounts to possession of all even if the other co-sharers are not in actual and physical possession thereof. Even a co-sharer in exclusive possession of any portion of joint property cannot be permitted to raise construction and to ::: Downloaded on - 15/04/2017 17:38:25 :::HCHP
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change the nature thereof because every other co-
sharer is joint owner in respect of every inch thereof.
.
18. In the case in hand, no doubt, the parties on both sides have constructed their houses over the suit land bearing Khasra No.190. The defendant, however, is not justified in claiming that since the plaintiffs have their house in existence over the suit land, therefore, he has a right to raise construction over the land lying vacant that too when he has also constructed his house over a portion thereof and such house already in existence on the spot. He may raise further construction but only after getting his share separated from that of other co-sharers and occupying the same in exclusion of such other co-
sharers.
19. The defendant admittedly has raised the construction upto plinth level over a portion of the suit land, without getting the same partitioned. He, by doing so, has threatened to evade the rights of other co-sharers including the plaintiffs therein. He, being not ::: Downloaded on - 15/04/2017 17:38:25 :::HCHP
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in exclusive possession of the vacant suit land over which he intends to raise the construction, hence cannot be .
permitted to go ahead with construction in violation of the rights and interest of other co-sharers therein.
20. The plaintiffs have, therefore, successfully pleaded and proved the interference over the suit land by the defendant and thereby threatened their rights and interest therein. The clear-cut case for grant of decree for permanent prohibitory injunction is, therefore, made out in favour of the plaintiffs. The contentions raised to the contrary by Mr. G.D. Verma, learned Senior Advocate, on behalf of the respondents-defendants, however, are without any substance. The case law as cited at the bar is also not applicable in the given facts and circumstances of the case. Learned Trial Court was, therefore, absolutely justified in decreeing the suit. The findings to the contrary recorded by Lower Appellate Court are, therefore, the result of misappreciation of the oral as well as documentary evidence available on ::: Downloaded on - 15/04/2017 17:38:25 :::HCHP
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record. Consequently, the judgment and decree under challenge is neither legally nor factually sustainable.
.
Both the questions of law stands answered accordingly.
21. In view of what has been stated hereinabove, this appeal succeeds and the same is accordingly allowed. Consequently, the judgment and decree passed by learned trial Court is upheld and that passed by learned lower appellate Court quashed and set aside. The parties, however, are left to bear their own costs.
February 24, 2015 (Dharam Chand Chaudhary),
(ps) Judge.
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