Himachal Pradesh High Court
Smt. Seema Devi vs Anoop Kumar And Others on 15 December, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CMPMO No. 275 of 2020
Reserved on: December 6, 2022
Decided on: December 15, 2022
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Smt. Seema Devi .........Petitioner
Versus
Anoop Kumar and others ...Respondents
________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
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For the petitioner: Ms. Devyani Sharma, Advocate.
For the respondents: Mr. Sudhir Thakur, Senior Advocate with
Mr. Karun Negi, Advocate, for
respondents Nos. 1 and 3 to 5.
None for respondent No.2.
________________________________________________________
Sandeep Sharma, J.
By way of instant petition filed under Art. 227 of the Constitution of India, challenge has been laid to judgment dated 7.3.2020 passed by learned Additional District Judge, Nalagarh, District Solan, Himachal Pradesh in Civil Misc. Appeal No. 18-NL/14 of 2019 titled Seema Devi v. Anup Kumar, affirming the order dated 20.6.2019 passed by, learned Senior Civil Judge, Nalagarh, District Solan, Himachal Pradesh in CMA No. 60/6 of 2019 in Civil Suit No. 86/1 of 2019, whereby an application filed by respondent No.1/plaintiff (hereinafter, 'plaintiff') under Order XXXIX, rules 1 and 2 CPC restraining the petitioner/defendant No.1 (hereinafter, 'defendant No.1') from raising construction on the suit land during the pendency of the suit, came to be allowed.
Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 16/12/2022 20:32:47 :::CIS -2-2. For having bird's eye view of the matter, facts shorn of unnecessary details and relevant for the adjudication of the case at .
hand are that the plaintiff filed a suit for permanent prohibitory injunction in the court of learned Senior Civil Judge, Nalagarh, averring therein that the land measuring 1-14 Bigha out of total land measuring 8-14 Bigha bearing Khasra Nos. 107 and 108, comprised in Khewat Khatauni Nos. 52/53, situate in Village Buranwala, Tehsil Baddi, District Solan, Himachal Pradesh as per Jamabandi for the year 2016 (hereinafter, 'suit land')is joint property of the plaintiff, defendants and other co-sharers. Plaintiff set up a case that the parties to the suit are Hindus, governed by Hindu Succession Act and suit land was owned and possessed by one Ram Dass, grandfather of the plaintiff and after his death, same was inherited by father of the plaintiff and defendants Nos. 2 to 4 and husband of defendant No.5, namely Shri Jeet Ram.
Aforesaid Jeet Ram died inteste, leaving behind plaintiff and defendants Nos. 3 to 5 as his class I heirs. Plaintiff claimed that the suit land came into hands of Jeet Ram as ancestral and coparcenery property as the same was inherited by him from his father, Ram Dass.
Plaintiff further claimed that since the suit land was joint between the cosharers/coparceners and legal heirs of Jeet Ram, sale deed No. 60, dated 8.1.2018 of undivided share of defendant No.2 in favour of defendant No.1 and mutation No. 738 dated 11.1.2018 sanctioned on the basis of same is wrong, illegal, null and void. Plaintiff averred that ::: Downloaded on - 16/12/2022 20:32:47 :::CIS -3- defendant No.1 threatened him to interfere in the suit land and to disposses her therefrom forcibly on the basis of illegal sale deed and .
revenue entries, whereas, plaintiff is co-owner in possession of suit land and no legal title has been transferred in favour of defendant No.1. Alongwith the plaint, plaintiff filed an application under Order XXXIX, rules 1 and 2 CPC, stating therein that since he is co-owner-in-
possession of the suit land and suit land is joint inter se parties coupled with the fact that defendant No.1 has extended threats to dispossess
3.
r to him forcibly on account sale deed No. 60, dated 8.1.2018, defendant No.1 is required to be restrained from interfering in the suit land.
Aforesaid suit as well as application for stay, having been filed by the plaintiff, came to be contested by defendant No.1, who while filing written statement to the plaint and reply to stay application, pleaded that the plaintiff has no cause of action or locus standi to file the application, especially when it is not in dispute that the suit land stands partitioned with mutual consent of the parties. Defendant No.1 claimed that the suit land was partitioned inter se parties with mutual consent of the parties and at that time, no objection, if any, was ever raised by the plaintiff. Defendant No.1 alleged that the plaintiff never raised question of title before Assistant Collector 1st Grade, Baddi, during partition proceedings, whereafter, she purchased the suit land after making due enquiries and payment of sale consideration.
Defendant No.1 pleaded that the plaintiff and defendants Nos. 3 to 5 ::: Downloaded on - 16/12/2022 20:32:47 :::CIS -4- were never ready to purchase the suit land from defendant No.2. She claimed that new Khasra No. 108/1 has been carved after sale of her .
share made by defendant No.2 and she was recorded as owner-in-
possession of the same, as such, plaintiff has no right, title or interest over the same. While admitting that the parties to the suit are Hindu, defendant No.1 specifically denied that the suit land remained in the hands of Jeet Ram as ancestral and coparcenery property during his life time. Defendant No.1 pleaded that defendant No.2 legally sold her share in her favour vide sale deed dated 8.1.2018 and now with a view to extract money, plaintiff has filed a frivolous suit against her, who after having secured possession of land in question, has already completed 80% of the work of construction of petrol pump on the site.
Defendant No.1 pleaded that there is no prima facie case in favour of the plaintiff, who has no right, title or interest over the suit land in view of partition of suit land, between the parties by lawful process.
Defendant No.1 claimed that in case prayer made for interim injunction during pendency of the suit is accepted, irreparable loss and injury would be suffered by her, which cannot be compensated in monetary terms.
4. Learned trial Court, on the basis of pleadings adduced on record by respective parties allowed the application filed under Order XXXIX, rules 1 and 2 CPC, vide order dated 20.6.2019 and restrained defendant No.1 from interfering in any manner, in the suit land, and ::: Downloaded on - 16/12/2022 20:32:47 :::CIS -5- encumbering, creating charge, changing nature and character of suit land and raising construction over suit land, till final disposal of the suit.
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5. Being aggrieved and dissatisfied with the aforesaid interim injunction granted by learned trial Court, defendant No.1 filed an appeal in the court of learned Additional District Judge, Nalagarh, Solan, Himachal Pradesh, however, the same was also dismissed vide judgment dated 7.3.2020. In the aforesaid background, defendant No.1 has approached this Court in the instant proceedings, praying therein for setting aside aforesaid judgment dated 7.3.2020 upholding order dated 20.6.2019 passed by learned Senior Civil Judge, Nalagarh, District Solan, Himachal Pradesh, with further prayer to permit her to raise construction during the pendency of the suit, conclusion whereof may take considerable time.
6. Ms. Devyani Sharma, learned Counsel appearing for defendant No.1, vehemently argued that judgment dated 7.3.2020 passed by learned Additional District Judge Nalagarh, is not sustainable in the eye of law being totally contrary to the facts as well as law on the point, as such, same deserves to be set aside. Ms. Devyani Sharma, while making this Court peruse the documents adduced on record by respective parties, vehemently argued that once factum with regard to partition of suit land stood duly proved on record, there was no occasion for learned Courts below to pass restraint order against defendant No.1, who after having obtained possession, on the ::: Downloaded on - 16/12/2022 20:32:47 :::CIS -6- basis of order of partition, invested huge amount for construction of petrol pump on the site. Ms. Devyani Sharma further argued that bare .
perusal of judgment passed by learned Additional District Judge below as well as order dated 20.6.2019 passed by learned Senior Civil Judge, Nalagarh reveals that the factum with regard to pendency of the appeal against order of partition passed by competent Authority weighed heavily with the learned Courts below, while passing order of restraint against defendant No.1. She submitted that since suit property was ordered to be partitioned by competent Authority, taking into consideration prayer made on behalf of defendant No. 2 as well as other co-owners and, at that time, no objection, if any, was ever raised by plaintiff, application having been filed by him under Order XXXIX, rules 1 and 2 CPC, ought to have been dismissed. Ms. Sharma, further submitted that otherwise also, plaintiff had not approached the court with clean hands because, he very conveniently, with a view to have stay order in his favour, concealed the factum with regard to his having filed another civil suit i.e. Civil Suit No. 125/1 of 2018 for permanent prohibitory injunction, wherein he, while admitting defendant No.1 to be one of cosharers in the suit land, sought permanent prohibitory injunction on the ground that property is yet to be partitioned inter se parties. Ms. Sharma further submitted that the factum, if any, with regard to nature of property i.e. ancestral and coparcenery, was very much in the knowledge of the plaintiff at the time of filing of civil suit ::: Downloaded on - 16/12/2022 20:32:47 :::CIS -7- No. 125/1 of 2018 but at that stage, no such plea, if any, ever came to be taken.
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7. Before ascertaining correctness of rival submissions made on behalf of learned counsel for the parties, this court finds it necessary to deal with specific question raised by the plaintiff, with regard to maintainability of petition under Art. 227 of the Constitution of India, laying therein challenge to the judgment of learned Additional District Judge in appeal filed against order passed on an application filed under Order XXXIX, rules 1 and 2.
8. At this juncture, it would be apt to take note of the judgment passed by the Hon'ble Apex Court in case titled Garmet Craft v.
Prakash Chand Goel, 2022 4 SCC 181, wherein it has been specifically held that while exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court does not act as a Court of First Appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. It has been further held in the afore judgment that 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. Power under Article 227 of the Constitution of India is to be exercised where 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 arrived at by the Courts below.
Relevant part of the judgment reads as under:
::: Downloaded on - 16/12/2022 20:32:47 :::CIS -8-"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 its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, 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.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2 has observed: (SCC pp. 101-102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds oftheir authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if 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, which the court or tribunal has come to."
9. Aforesaid exposition of law laid down by the Hon'ble Apex Court clearly reveals that, while exercising supervisory jurisdiction ::: Downloaded on - 16/12/2022 20:32:47 :::CIS -9- under Article 227 of the Constitution of India, this Court cannot act as court of First Appeal and as such, cannot re-appreciate the evidence .
on facts while ascertaining the correctness of the order impugned in such proceedings. However, this Court would be justified in exercising power under Article 227 of the Constitution of India in such like cases where the findings are not based upon the evidence available on record or same are so perverse that no reasonable person could possibly come to such a conclusion as has been arrived by the court.
10. Now being guided by the aforesaid principle of law laid down by the Hon'ble Apex Court with regard to exercise of supervisory jurisdiction under Article 227 of Constitution of India, this court proceeds to ascertain on the basis of material available on record whether findings returned by learned District Judge while affirming the order passed by the learned trial court dismissing the application filed under Order 39 Rules 1&2 CPC are based upon material/evidence adduced on record by the respective parties or same is totally contrary to the record and the evidence.
11. Having heard Learned Counsel appearing for the parties and perused the record vis-à-vis reasoning assigned by learned Additional District Judge, while passing impugned judgment, this court is persuaded to agree with Ms. Devyani Sharma, that both the learned Courts below, while passing restraint order against defendant No.1, failed to appreciate the pleadings as well as other material adduced on ::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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record by respective parties. This court finds from the record that prior to filing of suit at hand, defendant No.1 had filed Civil Suit No. 125-1 of .
2018 (Annexure P-2), for permanent prohibitory injunction, admitting therein defendant No.1 to be one of cosharers in the suit land. In the aforesaid suit, plaintiff, while stating that he as well as defendant No.1 are cosharers in the suit land alongwith other co-sharers, specifically stated that defendant No.1 became cosharer in the suit land, after her having purchased share of one of her sister, but at that time, he never raised that plea that defendant No. 2 was not competent to sell the property in favour of defendant No.1, same being ancestral and coparcenery, rather, in that suit, plaintiff claimed that since the suit land is joint inter se him and defendants, defendant No.1 cannot be permitted to raise construction on the same, till the time, partition is done in metes and bounds.
12. This Court finds force in the submission of Ms. Devyani Sharma that the aforesaid issue of property being ancestral and coparcenery and competence of defendant No.2 to sell the property in favour of defendant No. 1 was very much in the knowledge of plaintiff at the time of filing earlier suit, as such, he ought to have pleaded such facts in earlier suit filed against defendant No.1 for permanent prohibitory injunction. Since the plaintiff failed to plead all the facts, with regard to earlier suit i.e. Civil Suit No. 125/1 of 2018, defendant No.1 ::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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is at liberty to raise plea that the subsequent suit is barred by provisions of Order II, rule 2 CPC.
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13. Similarly, this Court finds that it is not in dispute that the suit land has been already ordered to be partitioned by the competent Authority. True it is that after passing of order of partition by competent Authority, plaintiff filed an appeal before Sub Division Collector, Nalagarh which has been also dismissed and now further appeal has been filed before Collector, Solan, which is pending adjudication.
14. Though, Mr. Sudhir Thakur, learned senior counsel duly assisted by Mr. Karun Negi, Advocate, while appearing for the plaintiff, vehemently argued that since order passing by Sub Division Collector, thereby rejecting appeal filed by the plaintiff, has been stayed by the Collector, partition proceedings drawn by Assistant Collector 1st Grade Nalagarh vide order dated 30.8.2018, cannot be said to have attained finality, but this court finds force in the submission of Ms. Devyani Sharma that since no challenge, if any, was ever laid to the mode of partition, instrument of partition prepared on that basis cannot be questioned. Needless to say, instrument of partition is only a step further to execute the mode of partition. In this regard, reliance is placed upon judgment passed by Punjab and Haryana High Court in CWP No. 5990 of 1991, titled Lala Ram v. The Financial Commissioner, Haryana, decided on 10.10.1991, wherein it has been held as under:
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"6. Sections 110 to 126 contained in Chapter IX of the Act deal with partition. While S. 110 is with regard to the effect of partitions of estates and tenancies on joint liability for revenue and rent for purposes of the Land Revenue Act.
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S. 111 is with regard to rights of a joint owner of land or a joint tenant or a tenancy in which the right of occupancy subsists, to apply to a revenue officer for partition of his share in the land or tenancy, as the case may be. S. 112 is with regard to restriction and limitation on partition. It contains provisions giving power to the revenue officers to refuse partition pertaining to any embankment, water-course, well or tank, grazing ground or any land which is occupied as the site of a town or village and is assessed to land revenue. S. 113 contains provisions with regard to issuance of notices to interested parties and the rights of such parties to raise an objection to partition proceedings. S. 114 is with regard to addition of parties to the partition application. S. 115 of the Act vests power in the revenue officer to disallow partition if in his opinion there is good and sufficient cause to do so. S. 116 deals with procedure on admission of partition applications. Ss. 117 and 118 which contain a clue to the answer of the question under consideration need to be reproduced here:--
"117. Disposal of questions as to title in property to be divided.-- (1) Where there is a question as to title in any of the property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he were such a Court. (2) Where the revenue officer himself proceeds to determine the question, the following rules shall apply, namely:
(a) If the question is one over which a Revenue Court has jurisdiction, the Revenue Officer shall proceed as Revenue Court under the provisions of the Punjab Tenancy Act, 1887.
(b) If the question is one over which a Civil Court has jurisdiction, the procedure of the Revenue Officer shall be that applicable to the trial of an original suit by a Civil Court and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure to be specified therein.
(c) An appeal shall lie from the decree of the Revenue Officer under Cl. (b) as though that decree were a decree of a Subordinate Judge in an original suit.
(d) Upon such an appeal being made, the District Court or High Court, as the case may be, may issue an injunction to the Revenue Officer requiring him to stay proceedings pending the disposal of the appeal.::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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(e) From the appellate decree of a District Court upon such an appeal, a further appeal shall lie to the High Court if such a further appeal is allowed by the law for the time being in force."
"118. Disposal of other questions.-- (1) Where there is a question as to .
property to be divided, or the mode of making a partition, the Revenue Officer shall, after such inquiry as he deems necessary, record an order stating his decision on the question and his reasons for the decision.
(2) An appeal may be preferred from an order under sub-sec. (1) within fifteen days from the date thereof, and, when such an appeal is preferred and the institution thereof has been certified to the Revenue Officer by the authority to whom the appeal has been preferred the Revenue Officer shall stay proceedings pending the disposal of the appeal.
(3) If an applicant for partition is dissatisfied with an original or appellate order under this section, and applies for permission to withdraw from the proceedings in so far they relate to the partition of his shares, he shall be permitted to withdraw therefrom on such terms as the Revenue Officer thinks fit.
(4) When an applicant withdraws under the last foregoing sub-
r section, the Revenue Officer may, where the other applicants if any desire the continuance of the proceedings, continue them in so far they relate to the partition of the shares of those other applicants."
A perusal of the two sections that have been quoted above would show that it is under these sections that the questions of title and mode of making partition are determined. Once the aforesaid questions are determined, the partition proceedings, in so far as the rights of the parties are concerned, come to an end. S. 119 contains provisions about administration of property excluded from partition whereas S. 120 contains provisions with regard to distribution of revenue and rent after partition. In so far as S. 121 of the Act is concerned, it only says that when partition is completed the Revenue Officer will cause an instrument of partition to be prepared and the date on which the instrument of partition is to take effect would be recorded therein. S. 122 of the Act is only with regard to delivery of possession of property allotted on partition. S. 123 deals with affirmation of partition privately effected. Ss. 124 to 126 are only with regard to power to make rules as to costs of partitions, redistribution of land according to custom and details of officers who may be empowered to act under the chapter dealing with partition proceedings. A perusal of the schemes of partition contained in Chapter IX would manifest that after the mode of partition is determined, the partition proceedings come to an end, and in so far as the preparation of instrument of partition is ::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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concerned it is only an executory act. An appeal has been specifically provided against an order dealt with by S. 118, i.e., the mode of partition. In case such an appeal is filed within 15 days from the date of determination of .
the mode of partition and the institution of such an appeal has been certified to the Revenue Officer, it amounts to an automatic stay of proceedings pending disposal of the appeal. If the orders specifically dealt with in the Act against which an appeal is provided or which otherwise determine the rights of the parties, like an order refusing partition, order determining title of the parties, are not appealed against and the partition proceedings are permitted to go on till finalisation of his mode of partition then the consequential orders which only implement what has been determined earlier cannot be the subject-matter of appeals. Mr. Verma, however, on the strength of decision rendered by Himachal Pradesh High Court reported as Kham Dutt v. Palkia, 1982 Pun LJ 391: (AIR 1983 Him Pra 28) and decision rendered by Financial Commissioner, Punjab, reported as Kartar Singh v. Kapur Singh, 1971 Pun LJ 677, has endeavoured to persuade me to take a different view. A perusal of the aforesaid judgments, however, would show that the point under consideration was not at all involved in the aforesaid two cases. It was only held in the said cases that preparation of the instrument of partition is not a mere formality but it is a necessary document to make a partition decree effective and that it is the date given in the instrument of partition from which the partition is to take effect and also that the possession even if delivered to the parties before the partition was made effective would not extinguish the status of the parties as a co-sharer. It is, no doubt, true that the instrument of partition has necessarily to be prepared but the fact remains that the said instrument only records what has already been determined. It is a formal document that has to be prepared only to recognise the fact of partition. The very fact that it has to be necessarily drawn does not mean that it is appealable. A perusal of various sections that have been referred to above would manifest that the instrument of partition is a step in execution of partition which has already taken place. Once all the necessary steps in effecting partition have been taken then a party to proceedings cannot raise objections in drawing the instrument of partition. It is just like a decree which is to follow the judgment. It is only those orders which affect the rights of the parties that are appealable and the document, viz., the instrument of partition which is only a step towards execution of the order of partition shall not be appealable. Faced with this situation, Mr. Verma contends in alternative that ::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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the appeal filed by the petitioner against orders dated 16th June, 1988, should be treated to be an appeal against orders dated 5-10-1987 and 5-5- 1988. He further contends that the delay in filing appeal against orders dated .
5th October, 1987 and 5th May, 1988, should be condoned in the interest of justice. This course is neither legally permissible nor equitable in view of the facts and circumstances of this case. The grounds to challenge orders dated 5th October, 1987 and 5th May, 1988 are of a different variety and some illegality, impropriety or failure of justice has necessarily to be pointed out. In the petitions filed in this Court not a word has been mentioned as to how and in what manner the proceedings conducted by the Revenue Officer were either illegal or improper or caused in any manner injustice to the petitioner. Mr. Verma, however, points out from the grounds of appeal taken before the Collector such illegalities or improprieties but even the perusal of the grounds taken before the Collector do not depict any specific point raised. These grounds are of general nature only and even in regard to such allegations nothing has been pointed out to this Court. In order to invoke the extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India, the petitioner must, in order to entitle himself to any relief, show that manifest injustice has been caused to him as a result of the impugned orders. When nothing at all has been either stated or shown that any injustice, much less manifest injustice, has occurred to the petitioner no relief can be granted to him. It requires to be noticed here that the interest of numerous persons has intervened. The answering respondents have allotted plots to the people who, in turn, have paid huge amounts towards cost of land and internal and external development charges either to the respondents or the Government."
15. Having perused the documents adduced on record by defendant No.1 alongwith written statement as well as reply to the application, this Court finds that both the learned Courts below have returned wrong findings that defendant No.1 failed to place on record Field Book as prepared by the Field Kanungo. Documents adduced on record clearly reveal that defendant No.1, while placing on record Field Book as prepared by Field Kanungo, specifically proved the factum ::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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with regard to preparation of Mode of Partition. It is not in dispute that after conclusion of partition proceedings, defendant No.1 as well as .
other co-sharers in the suit land came to be put in specific possession of the alnd, allotted to them in the suit land.
16. Though, Mr. Sudhir Thakur, learned senior counsel, vehemently argued that mutation entered on the basis of Field Book is of no consequence, but admittedly he was unable to dispute the factum with regard to attestation of mutation No. 761, perusal whereof clearly reveals that after conclusion of partition, defendant No.1 came to be put in specific possession of her respective share. It is also not in dispute, rather it is own case of the plaintiff as set up in Civil Suit No. 125/1 of 2018 that defendant No.1 became one of co-owners of suit land pursuant to her having purchased share of defendant No.2. If it is so, she is entitled to raise construction on the specific portion, to which she has been put in possession in partition proceedings. In earlier suit specific prayer of the plaintiff was that defendant No.1 be restrained from raising construction on the suit land till the time, same is partitioned in metes and bounds.
17. Since the land stands partitioned, as is evident from record, pursuant to partition proceedings, mutation stands decided, reflecting the defendant No.1 to be one of cosharers qua specific portion of land, learned Court below ought not have accepted the prayer made on behalf of plaintiff by way of application under Order XXXIX, rules 1 and ::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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2 CPC in the subsequent suit which is subject matter of present petition. Plaintiff taking U-turn set up altogether a different and new .
case specifically restraining the defendant No.1 from raising construction on the land falling to her share in the partition proceedings. In the subsequent suit, plaintiff challenged very action of defendant No. 2 in selling land in favour of defendant No.1 on the ground that land being ancestral and coparcenery, could not have been sold by defendant No.2 in favour of defendant No.1, rather, he
18.
r to being one of coparceners had a preferential right to purchase the share of defendant No.2.
Though the question, "whether the nature of suit property was ancestral and coparcenery, and whether plaintiff being one of co-
owners had a preferential right to buy share of one of coparceners", is to be determined by learned trial Court in the totality of facts and evidence led on record by respective parties but the averments contained in earlier suit filed by plaintiff i.e. Civil Suit No. 125-1/2018 clearly reveals that before selling property in favour of defendant No.1, defendant No.2 had made offer of sale to plaintiff, who declined the offer on the pretext that he is not in a position to purchase the property.
If it is so, ground raised by plaintiff with regard to his preferential right in subsequent suit is of not much relevance.
19. Assistant Collector 1st Grade Nalagarh vide order dated 30.8.2018 , allowed the partition and as a result thereof, parties were ::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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put to specific possession of their shares in suit land. True it is that before passing of aforesaid order, plaintiff had filed suit for permanent .
prohibitory injunction i.e. Civil Suit No. 125/1 of 2018 admitting therein defendant No.1 to be co-owner in the suit land but since prayer in the earlier suit was to restrain defendant No.1 from raising construction over the suit land, on the pretext that suit land is yet to be partitioned inter se parties and during the pendency of the suit, suit property was partitioned by the process of law, court should not have accepted the prayer of the plaintiff in subsequent suit.
20. Though learned Court below, is to decide the subsequent suit, as taken note herein above, on the basis of pleadings as well as evidence led on record, but since factum with regard to partition of the suit land inter se parties stands established on record, both the learned Courts below ought not have swayed by the fact that the appeal against order of partition passed by Assistant Collector 1st Grade is pending adjudication, especially when there is nothing on record to suggest that appeal, if any, was field by plaintiff against the mode of partition, on the basis of which, subsequently order of partition came to be passed.
21. Both the learned Courts below, while accepting the prayer made on behalf of the plaintiff have concluded that there is prima facie case in favour of the plaintiff and irreparable loss and injury would be caused to him, in case defendant No.1 is permitted to raise ::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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construction on the suit land during the pendency of the suit, however, this court having noticed the facts as detailed herein above, is of the .
view that there was no prima facie case in favour of plaintiff, rather, prima facie case, if any, was in favour of defendant No.1, who successfully proved on record that the suit land stands partitioned and pursuant to partition proceedings, she has been put in possession of specific portion of land. If it is so, she is/was very much entitled to raise construction on the same. Mere pendency of the appeal, if any, against partition order, could not be considered as prima facie case.
22. Since, the plaintiff prior to filing of suit at hand, had filed suit No. 125/1 of 2018, restraining defendant No.1 from raising construction over suit land, till the suit land is partitioned inter se co-owners in metes and bounds and partition is effected inter se parties by process of law, no balance of convenience could be said to be in favour of plaintiff.
23. Similarly, this Court finds from record that defendant No.1, after having become absolute owner of land fallen to her share, started construction of petrol pump, when she invested huge amount and had completed 80% of work, plaintiff filed another suit on altogether different facts, as have been noticed herein above. This court finds that the defendant No.1 filed undertaking before learned Court below by way of an affidavit that she may be permitted to raise construction and in case suit is decided against her, she will hand over vacant ::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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possession of the land to the plaintiff, but yet learned Courts below proceeded to infer prima facie case in favour of the plaintiff.
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24. Prima facie case could be gathered from the pleadings of the parties as well as documents annexed thereto. Since, in the case at hand, plaintiff failed to make mention of earlier suit having been filed by him, coupled with the fact that no challenge was ever laid by him to "mode of partition", both the learned Courts below erred in concluding prima facie case in favour of the plaintiff.
25. Similarly, in the earlier suit i.e. Civil Suit No. 125/1 of 2018, no pleadings, if any, with regard to nature of suit property being ancestral and coparcenery, ever came to be raised by the plaintiff.
Neither in earlier proceedings he laid challenge, if any, to the competence of defendant No.2 to sell property in favour of defendant No.1, who admittedly, after having purchased share of defendant No.2, making her one of co-owners, has invested huge amount therein.
26. By now it is well settled that before grant of injunction, Court must be satisfied that the party praying for relief has a prima facie case and balance of convenience is in its favour. Besides above, while granting injunction, if any, Court is also required to consider that whether the refusal to grant injunction would cause irreparable loss to such a party. Apart from aforesaid well established parameters/ingredients, conduct of the party seeking injunction is also of utmost importance, as has been held by Hon'ble Apex Court in case ::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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M/S Gujarat Bottling Co. Ltd. & Ors. Vs. The Coca Cola Co. & Ors., AIR 1995, 2372.
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27. The existence of prima facie right and infraction of the enjoyment of property or the right is a condition precedent for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial.
Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the Injury must be a material one, namely one that cannot be adequately compensated by way of damages. The balance of convenience must be in favour of granting injunction. The court while granting or refusing to grant injunction is expected to exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be ::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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maintained in status quo, an injunction would be issued. The court has to exercise discretion in granting or refusing the relief of ad interim .
injunction pending the suit. Reliance in this regard is placed upon much celebrated case of Dalpat Kumar v. Prahlad Singh (1992) 1 SCC 719, relevant paras of which read as under:
"...the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima fade right and infraction of the enjoyment of him property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the Injury must be a material one, namely one that cannot be adequately compensated by way of damages.
The balance of convenience must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. The court ::: Downloaded on - 16/12/2022 20:32:47 :::CIS
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has to exercise discretion in granting or refusing the relief of ad interim injunction pending the suit."
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28. Consequently in view of the detailed discussion made herein above and law taken into consideration, this court finds merit in the present petition and the same is allowed. judgment dated 7.3.2020 passed by learned Additional District Judge, Nalagarh, District Solan, Himachal Pradesh in Civil Misc. Appeal No. 18-NL/14 of 2019 titled Seema Devi v. Anup Kumar, affirming the order dated 20.6.2019 passed by, learned Senior Civil Judge, Nalagarh, District Solan, Himachal Pradesh in CMA No. 60/6 of 2019 in Civil Suit No. 86/1 of 2019, are set aside. Defendant No.1 is permitted to raise construction on the land in question, subject to furnishing a fresh undertaking before learned trial Court to the effect that in the event of suit of the plaintiff being decreed, she shall hand over vacant possession of suit land to the plaintiff.
29. Petition stands disposed of in the afore terms alongwith all pending applications. Interim directions, if any, stand vacated.
(Sandeep Sharma) Judge December 15, 2022 (Vikrant) ::: Downloaded on - 16/12/2022 20:32:47 :::CIS