Himachal Pradesh High Court
Sh.Om Prakash Sood vs Sh.Dharam Chand & Others on 5 September, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CMPMO No.254 of 2022
Judgment Reserved on : 25.08.2023
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Date of decision: 05.09.2023
Sh.Om Prakash Sood ....Petitioner-Plaintiff
Versus
Sh.Dharam Chand & Others ....Respondents-Defendants
of
Coram
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
rt
Whether approved for reporting ?1
For the Petitioner:
Yes.
Mr.R.L. Sood, Senior Advocate
with Mr.Arjun Lall Sood,
Advocate.
For Respondents No.1 to 4: Mr.Y.P. Sood, Advocate.
Sandeep Sharma,J.
Instant petition filed under Article 227 of the Constitution of India is directed against the judgment dated 11.11.2021, passed by learned District Judge, Shimla, affirming the order dated 31.12.2020 passed by learned Senior Civil Judge, Shimla, whereby an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, having been filed by the petitioner-plaintiff (hereinafter referred to as the 'plaintiff'), restraining the respondents-defendants (hereinafter referred to as the 'defendants') 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 06/09/2023 21:40:12 :::CIS 2from causing any obstruction/disturbance/interference in the free ingress and egress of the plaintiff and his family members in the .
suit premises comprised in Khata/Khatauni No.15/7.12, Khewat No.10 Min/1, Khasra Nos./117, 118, 119, 163, 228, 229, 230, Kita 7, measuring 202.90, situate at Mohal Bazar Ward, Lakkar Bazar, Patwar Circle Station Ward, Bada Shimla, Shimla (hereinafter referred to as the 'suit property') and also restraining of them from putting any locks on the main door and other doors of the premises in order to open the main path which leads to the rt residence of the plaintiff till the disposal of the main suit.
2. Precisely, the facts, as emerge from the record, are that the plaintiff filed a suit for permanent prohibitory injunction against the defendants averring therein that the plaintiff, defendants and proforma defendants are the co-sharers in the suit property as detailed hereinabove, which has been inherited by them from their common ancestor late Shri Ganga Dass Sood alias Ganga Ram. Plaintiff averred in the plaint that the building known as 'Chanakaya Hotel', situated on the suit land was constructed by late Shri Ganga Ram with the assistance of the plaintiff in the year 1972. Shri Ganga Ram expired on 29.04.1978 and thereafter the suit property being joint Hindu Family property devolved upon his three sons i.e. plaintiff, defendant No.1 and late Shri Karam Chand and two daughters Smt.Bimla and Smt.Saroj.
The residence of the plaintiff is on the top floor and one room at ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 3 the ground floor of the building. The access to the residence of the plaintiff is from the main gate/entrance of the building, which is .
common for the guests of the Hotel Chanakya and also for the plaintiff as has been depicted at points A, B and C in the attached site plan. Plaintiff specifically averred in the plaint that after the death of Shri Ganga Dass Sood, he and defendants No.1 and 2 alongwith the other co-owners gave power of attorney dated of 28.06.1978 to late Shri Karam Chand to manage and run the business of Chanakya Hotel and the other business. He also rt averred in the plaint that there is another building known as Shop and Residence No.1, Lakkar Bazar, Shimla which was reconstructed with the funds arising out of the business of the family. The said building consists of three floors and attic.
Defendants and proforma defendants are residing on the first and second floor and there is a shop on the ground floor. Since brothers and sisters of the plaintiff were settled in the said building, but the plaintiff at that time did not have proper residence, therefore, with the mutual understanding and consent of all the family members, the plaintiff made repairs/reconstruction of the top floor of the building and made residence there for his family in the year 1989. Plaintiff alleged in the plaint that Shri Karam Chand passed away on 05.08.2013 and after his death proforma defendants brought to the notice of the plaintiff that defendants are trying to run the hotel by illegal ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 4 means by submitting false/forged documents before the competent authorities and as such on his complaint licence of the hotel was .
cancelled in the year 2014-15. Thereafter, the defendants tried to open PG for women/girls, but they could not succeed. Plaintiff alleged that defendants neither allowed the plaintiff nor the proforma defendants to run any business from the said premises.
Plaintiff alleged that though doctor has advised him not to use of stair case, but in the last one month, the defendants, without any right and authority have locked main gate of the premises and rt bolted door in the common lobby, thereby blocking access of the plaintiff to his residence from the main door, as a result of which he is forced to use alternative path i.e. stair case, which is very difficult and painful for the plaintiff, who is 89 years of age, to reach his residence. The plaintiff averred in the plaint that defendants have no legal right to lock the main gate of the building. Alongwith aforesaid suit, plaintiff also filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure for grant of ad-interim injunction against the defendants to restrain them from causing any obstruction/disturbance/interference in the free ingress and egress of the plaintiff and his family members in the suit premises, as detailed hereinabove, and also restrain them from putting any lock on the main door and other doors of the premises ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 5 in order to open the main path which leads to the residence of the plaintiff during the pendency of the main suit.
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3. Aforesaid claim set up by the plaintiff came to be seriously refuted by the defendants No.1 to 4, whereas proforma defendants failed to appear despite service and they were ordered to be proceeded against ex-parte vide order dated 23.12.2020.
Defendant No.1 to 4, while fairly admitting the factum that suit of property is joint interse parties, contented that building known as Chanakya Hotel was constructed by late Shri Ganga Dass rt alongwith defendants No.1 and 2. They alleged that the plaintiff was living separately with his family from life time of Shri Ganga Dass, whereas defendants No.1 and 2 were residing with Shri Ganga Dass. They also claimed that since they were in government service, they provided finances to construct the hotel, whereas the plaintiff did not provide any financial assistance. While fairly admitting the factum with regard to residence of the plaintiff on the top floor of the building and also one room on the ground floor, defendants contended that plaintiff forcibly, illegally and unauthorizedly occupied top floor of the building. They claimed that the plaintiff was having his residence in the building No.22/31, Lakkar Bazar, Shimla, which is three storeyed building owned by the parties to the suit. As per family arrangement mutually arrived at between successors of late Shri Ganga Dass, the plaintiff was permitted to use building known as Shop ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 6 No.22/31, wherein plaintiff has been carrying business in the name of M/s Him Medical Store in the top floor. First floor was .
being used as residence by the plaintiff and the ground floor has been let out to a tenant. Similarly, Shri Karam Chand, predecessor-in-interest of the proforma defendants, was allowed to carry out the business in the shop in ground floor of the building/ Shop No.1, Ganga Dass Building, Lakkar Bazar, Shimla, whereas of defendant No.1 and his son defendant No.3 were given Chanakya Hotel Building to run the hotel. Defendants claimed that family rt arrangement was worked out between the successors of late Shri Ganga Dass for the purpose of separate exclusive possession and use of the respective properties by the co-owners till the joint properties are partitioned by metes and bounds and such arrangement was being honoured by the parties for the last more than 40 years. They submitted that the plaintiff was permitted to reside on the top floor only to maintain harmony in the family and from day one the plaintiff and his family members have been using stair case leading from main Lakkar Bazar road to the building to access the top floor. The plaintiff has been using this stair case as an approach without any interruption. The plaintiff or his family members were never permitted to use entrance of the hotel to reach his accommodation. The main door of the hotel was only being used for the guest/customers etc. of the hotel. In fact there are two doors in the first floor, out of which one is being used as ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 7 entrance to the office and another is being used as entrance to the reception area. The plea of the plaintiff claiming passage through .
the reception area of the hotel is mischievous. Defendants also stated in the written statement/reply to the application that defendant No.2 has also filed a suit seeking partition of the joint property and the plaintiff and proforma defendants are creating hurdle in the running of the hotel by the defendants No.1 and 3, of on the pretext that license of the hotel was in the name of predecessor of proforma defendants. While specifically claiming rt that the plaintiff was never permitted to use main entrance of Hotel Chanakya to reach his residence and the plaintiff and his family were forcibly trying to use main entrance of the hotel, defendants claimed that in the month of October 2016, plaintiff and his family members attempted to forcibly use main entrance of the hotel, which act was resisted and then the daughter-in-law of the plaintiff filed a criminal petition against defendants No.3 and 4 alleging forcible obstruction of their passage and causing injuries. Though the matter was put to trial, but defendants No.3 and 4 were acquitted vide judgment dated 5.12.2019. Now again the plaintiff has filed suit to harass the defendants, despite having appropriate passage in the shape of stair case to access his residence which is being used for the last so many years.
Defendants also claimed that the plaintiff is delaying the partition proceedings and has not even filed written statement during the ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 8 last six years. While seeking rejection of the plaint as well as application filed under Order 39 Rules 1 & 2 CPC defendants .
averred in their reply that if the plaintiff is allowed to use the main entrance of the hotel to reach his residence, it would result in hardship and inconvenience to them.
4. On the basis of aforesaid pleadings adduced on record by the respective parties, trial Court vide impugned order of 31.12.2020 dismissed the application under Order 39 Rules 1 & 2 CPC having been filed by the plaintiff. Being aggrieved and rt dissatisfied with the aforesaid order, plaintiff preferred an appeal bearing Civil Misc.Appeal No.4-S/14 of 2021, in the Court of learned District Judge. Shimla, which is also dismissed vide judgment dated 11.11.2021.
5. In the aforesaid background, plaintiff has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to quash and set aside the impugned order dated 11.11.2021 passed by learned District Judge, Shimla and allow the application under Order 39 Rules 1 and 2 CPC thereby restraining the defendants from blocking/locking the main entrance to Chanakya Building, Lakkar Bazar.
6. I have heard learned counsel for the parties and gone through the record of the case.
::: Downloaded on - 06/09/2023 21:40:12 :::CIS 97. Precisely, the case of the plaintiff as has been highlighted in the grounds of the petition and further canvassed .
by Mr.R.L. Sood, learned Senior Counsel for the plaintiff is that once it is not in dispute that the suit property is joint interse parties and the same is yet to be partitioned by metes and bound, prayer made on behalf of the plaintiff to restrain the defendants from causing any obstruction/disturbance/interference in the of peaceful use of passage leading to the house of the plaintiff from the main gate of reception ought to have been allowed. Mr Sood, rt learned Senior Counsel, further argued that there is ample evidence available on record suggestive of the fact that from day one plaintiff and his family members had been using passage from main gate of the suit property, but such passage of them has been un-authorisedly and illegally blocked by the defendants by putting lock on the main gate. Mr. Sood further submitted that both the Courts below have not appreciated the material available on record and once, they had arrived at a definite conclusion that parties to the suit are joint owners of the suit property then there was no occasion for them to hold that the plaintiff does not have a prima facie case. He further submitted that learned appellate Court, while upholding the order passed by trial Court, has not returned correct findings, especially while concluding that the balance of convenience is not in favour of the plaintiff. He submitted that it is not denied by the defendants that the plaintiff is more than 89 ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 10 years of age and suffering from chronic heart problems coupled with the fact that he has been using the ingress and egress for the .
residence from the main entrance of Hotel and as such both the Courts below have fallen in grave error while returning findings that prima facie case as well as balance of convenience do not exist in favour of the plaintiff. Lastly, Mr.Sood submitted that the appellate Court has also erred in holding that the plaintiff has of failed to establish that he will suffering irreparable loss and injuries which cannot be compensated in terms of money, rather rt the plaintiff has suffered huge damages which cannot be adequately compensated in terms of money. He submitted that mere fact that the plaintiff is 88 years of age, coupled with the fact that he is suffering from chronic heart disease and also weak knees, itself is sufficient to establish the existence of the element of irreparable loss and injury, which cannot be adequately compensated in terms of money. He submitted that on account of lock put on the main gate, plaintiff is compelled to climb down 11 steps and climb up 25 steps respectively, which action of him poses a constant threat to his very existence. Mr.Sood further submitted that the learned Court below has wrongly and illegally proceeded to dismiss appeal on the premise that the plaintiff has an alternate path in the form of staircase by way of approach.
Mr.Sood further submitted that the suit filed by the plaintiff was not in relation to assertion to an easementary right of necessity, ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 11 rather plaintiff being a joint owner in possession had an independent unassailable right to use the main entrance of the .
building by way of ingress and egress.
8. While refuting aforesaid submissions made by Mr.R.L. Sood, learned Senior Counsel appearing for the plaintiff, Mr.Y.P. Sood, learned counsel representing the defendants, supported the impugned judgment passed by learned District Judge. He of submitted that bare perusal of the judgment passed by learned District Judge laid challenge in the instant proceedings clearly rt suggests that the Court below has dealt with each and every aspect of the matter meticulously and there is no scope of interference. Mr.Sood further submitted that otherwise also petition filed under Article 227 of the Constitution of India is not maintainable, especially when there is no illegality and infirmity in the judgment of the learned District Judge and as such this Court may not interfere with the same. He stated that since findings returned by District Judge are based upon proper appreciation of facts and law and there is no perversity, petition filed under Article 227 of the Constitution of India is not maintainable.
9. In support of his aforesaid submission he placed reliance upon the judgment passed by Hon'ble Apex Court in Garmet Craft vs. Prakash Chand Goel, (2022)4 SCC 181.
Mr.Sood, while fairly admitting the factum with regard to joint ownership of the property interse plaintiff and defendants, ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 12 submitted that as per own case set up by the plaintiff the parties are in settled possession of their specific shares in the disputed .
property for the last 40 years and as such prayer made on behalf of the plaintiff that the suit cannot be decided on the ground that the property is joint interse parties and same cannot be used separately by the parties till the time the same is partitioned in the metes and bounds is not tenable. He further submitted that bare of perusal of the pleadings adduced on the record by the plaintiff itself suggests that one month before filing of the suit, the rt defendants had put up lock on the main entrance and as such no illegality can be said to have been committed by both the Courts below whereby they returned findings that prayer of the plaintiff to restrain the defendants by putting any lock on the main door and other doors of the premises in order to open the main path which leads to the residence of the plaintiff, cannot be granted by way of interim order in the application under Order 39 Rules 1 & 2 CPC.
10. Before ascertaining the correctness and genuineness of the aforesaid rival submissions made by the learned counsel for the parties, this Court, deems it fit to deal with the question raised by Mr.Y.P. Sood, learned counsel representing the defendants, with regard to maintainability of the present petition filed under Article 227 of the Constitution of India, laying therein challenge to the findings rendered by the learned District Judge in an appeal ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 13 filed against the order passed by the learned trial Court to application filed under Order 39 Rules 1 & 2 CPC.
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11. Needless to say 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 re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Similarly, supervisory jurisdiction cannot be of used to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. Power under Article rt 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. Reliance in this regard is placed upon the judgment of Hon'ble Apex Court in Garmet Craft's case supra, relevant part of which reads as under:-
"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 ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 14 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) of "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 rt 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."
12. It is quiet apparent from the aforesaid exposition of law laid down by the Hon'ble Apex Court that while exercising ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 15 supervisory jurisdiction under Article 227 of the Constitution of India, High 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, High 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 of same are perverse.
13. Now being guided by the aforesaid principle of law laid rt down by the Hon'ble Apex Court with regard to exercise of supervisory jurisdiction under Article 227 of Constitution of India, this court would make an attempt to ascertain on the basis of material available on record, whether findings returned by learned District Judge while upholding 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.
14. It is well settled now that until partition is complete, parties are to be treated as co-owners in the joint land, possession of one of the co-sharers is possession of all in the eye of law, unless the person, who has been in exclusive possession asserts his title, in himself to the exclusion of the other co-sharers, which may amount to ouster. It has been repeatedly held by Hon'ble ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 16 Apex Court as well as this Court that all the co-owners have equal rights and coordinate interest in the property though their shares .
may be either fixed or indeterminate, meaning thereby that every co-owner has a right to enjoy the possession equally to that of co-
owner. A person, who has been in the possession of joint property, can be said to be holding the property not only for himself, but also in favour of other co-sharers. Similarly, by now it is well of settled that mere fact that one of the party is recorded as co-owner of the suit land cannot deprive or suppress the right of other co-
rt owners to utilize the land by raising construction. Issue with regard to rights and liabilities of the co-sharers has been aptly dealt with by Coordinate Bench of this Court in case titled Ashok Kapoor vs. Murtu Devi 2016 (1) Shim. LC 207 (2015) ILR H.P.1312. Relevant paras of aforesaid judgment are as under:-
"46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:-
i) a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession.
ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.::: Downloaded on - 06/09/2023 21:40:12 :::CIS 17
(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of .
the value and utility of the property.
(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possess ion can seek an injunction to prevent such act which is detrimental to his interest.
(v) before an injunction is issued, the of plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered rtwith.
(vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.
47. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff:-
(i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction;
(ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's right or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and
(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 18 and he approaches the Court with clean hands."
15. In the case at hand, it is nowhere in dispute that .
parties to the lis are recorded as co-owners in the suit land, but as per own pleadings of the plaintiff, co-owners have been using/occupying specific shares in the suit property from almost four decades.
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16. As per plaintiff, suit property was inherited by the plaintiff, defendants and proforma defendants from their ancestor rt late Shri Ganga Dass Sood and after his death the same is jointly owned and possessed by them as co-sharers. Building known as Chanakya Hotel situate in Lakkar Bazar, Shimla was constructed by late Shri Ganga Dass, but after his death, property being joint and undivided Hindu Family property devolved upon his three sons i.e. plaintiff, defendant No.1 and late Shri Karam Chand and two daughters Smt.Bimla and Smt.Saroj. It is quiet apparent from the pleadings adduced on record by the plaintiff that though property is joint interse parties, but with mutual understanding and consent of all the family members plaintiff as well as defendants have residing in their specific portion since the year 1989. Defendants while admitting themselves to be co-owners with the plaintiff in the suit property have nowhere disputed the factum with regard to residence of the plaintiff on the top floor of the building, where Chanakya Hotel is situated, but have ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 19 specifically stated that from day one plaintiff and his family members have been using stair case leading from main Lakkar .
Bazar road to the building to access the top floor. The plaintiff has been using this stair case as an approach to his house without any interruption. The plaintiff or his family members were never permitted to use entrance of the hotel to reach his accommodation on the top floor. Defendants claimed that the of main door of the hotel was only being used for the guest/customers etc. of the hotel. One thing is quiet apparent rt from the pleadings adduced on record by both the parties that though both the parties are in joint ownership of the property, which is yet to be partitioned by meets and bounds but as per mutual family understanding they have been living in their specific shares. Though the plaintiff herein has his residence in the top floor of the building containing Chanakya Hotel, but to reach on the top floor plaintiff and his family members have been using stair case leading from main Lakkar Bazar road to the building.
17. At this stage, Mr.R.L. Sood, learned Senior Counsel representing the plaintiff, vehemently argued that once no family arrangement, if any, arrived at interse parties ever came to be placed on record of the main suit, there was no occasion for the Courts below to rest their findings upon the same. Mr.Y.P. Sood, learned counsel representing the defendants, stated that placing ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 20 on record family settlement, if any, may not be much relevance, especially, when such fact is born out from the pleadings adduced .
on record by the plaintiffs. To support his aforesaid contention he placed reliance upon the judgment passed by this Court in CMPMO NO.211 of 2022, titled as Shri Bhajna Nand vs. Shri Bharat Ram, decided on 31.08.2022, which has been further upheld by Hon'ble Apex Court. In the aforesaid case plea was set of up by the plaintiff that since no family arrangement depicting apportionment of the land inter-se plaintiff and defendant ever rt came to be placed on record, learned court below could not have proceeded to conclude factum with regard to specific possession, if any, of the defendants over a specific portion of the land in the joint land on the basis of revenue record. However, this Court, having taken note of the pleadings adduced on record by the parties, especially plaintiff, wherein he himself has disclosed factum with regard to family partition, uphold the findings returned by learned District Judge that there is ample material on record to suggest that in terms of family arrangement parties are in possession over specific portion of the land in the joint land.
18. In the aforesaid judgment this Court has categorically held that non-placing of family settlement/arrangement, if any, by the defendants is of no consequence, especially when plaintiff himself has not denied factum with regard to his having possession over khasra number reflected in the revenue record, ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 21 coupled with the fact that he has already raised construction on the khasra number in his possession. No doubt in the case at .
hand, partition proceedings are pending but admittedly on the basis of family arrangement, which was arrived interse parties more than three decades back, all the co-owners are in settled possession of their specific shares in the suit property and as such one co-owner cannot be permitted to cause interference or of obstruction in the peaceful possession of other co-owner. Though in the case at hand, Mr.R.L. Sood, learned Senior Counsel rt representing the plaintiff, attempted to carve out a case that the plaintiff and his family members had been using main door of the hotel as entrance to go to their residence on the top floor, but pleadings adduced on record itself suggests that one month prior to filing of the suit defendants had allegedly put lock on the main gate of the hotel, as a result of which, plaintiff was compelled to use stair case leading from main Lakkar Bazar road to the building to access the top floor. Since at the time of consideration of the application under Order 39 Rules 1 & 2 CPC, wherein specific direction was sought to restrain the defendants from causing any hindrance or obstruction in the peaceful passage of the plaintiff through main gate of the hotel, main door stood locked, there was obviously no occasion for the Courts below to direct the defendants to open or remove the lock allegedly put by them one month prior to filing of the suit that too by way of ad ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 22 interim injunction, rather for the aforesaid purpose definitely appropriate remedy is/was to file suit for mandatory injunction.
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This Court finds from the pleadings adduced on record by the defendants that actually the entry of the plaintiff from main entrance of the Hotel Chankaya was not stopped one month prior to filing of the suit, rather dispute interse parties on aforesaid issue had actually arisen in the month of October, 2016. Allegedly of in the month of October, 2016, when defendants resisted forcible entry of the plaintiff and his family members from main entrance, rt a complaint was lodged against the defendants by daughter-in-law of the plaintiff alleging forcible obstruction of their passage and causing injuries, the matter was put to trial, but the defendants No.3 and 4 were acquitted vide judgment dated 5.12.2019.
19. In the aforesaid background, both the Courts below rightly held the plaintiff guilty of suppression and concealment of material facts while approaching competent Court of law. Facts, as noticed hereinabove never came to be put forth in plaint filed by the plaintiff, otherwise also it is not understood that if one month prior to filing of the suit, defendants had obstructed/stopped the entry of the plaintiff and his family members by putting locks on entrance of the hotel, what prevented them from filing complaint or suit immediately thereafter. However, in the case at hand plaintiff not only waited for one month to file a suit but he also not filed any complaint as was done by him in the year 2016.
::: Downloaded on - 06/09/2023 21:40:12 :::CIS 23Aforesaid conduct of plaintiff certainly compels this Court to agree with Shri Y.P. Sood, learned counsel representing the defendants .
that immediately after mutual understanding arrived interse parties in the year 1989 parties had been residing in their specific portions and to approach the top floor situated on the building containing Chankaya Hotel, plaintiff and his family members had been using stair case leading from main Lakkar Bazar. Material of available on record clearly reveals that the suit premises in not the only joint property owned and possessed by the parties, but there rt are other joint properties owned by the parties to the suit and a suit for partition of joint properties is pending adjudication for the last more than six years. Plaintiff though made reference of partition proceedings in his plaint but nowhere disclosed factum with regard to other property jointly owned and possessed by parties. Needless to say that relief of injunction is a relief in equity. When a person is guilty of suppression of facts, he is not entitled to any relief, more particularly the discretionary relief of injunction. Since, in the case at hand, plaintiff suppressed the material fact with regard to lodging of FIR under Sections 341, 323, 506 read with Section 34 of the Indian Penal Code against the defendants on the allegations that they had forcibly obstructed their passage to reach the top floor of the building, learned Court below rightly held plaintiff not entitled to the discretionary relief of injunction.
::: Downloaded on - 06/09/2023 21:40:12 :::CIS 2420. While considering prayer for injunction, Court must be satisfied itself that the party praying for relief has a prima facie .
case and balance of convenience 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. Most importantly, apart from aforesaid well established parameters/ingredients, conduct of the party seeking of injunction is also of utmost importance, as has been held by Hon'ble Apex Court in case M/S Gujarat Bottling Co. Ltd. & Ors.
rt Vs. The Coca Cola Co. & Ors., AIR 1995, 2372.
21. In the aforesaid judgment it has been categorically held that while passing interim order of injunction under Order 39 Rules 1 & 2 CPC, Court besides taking into consideration three specific principles, i.e. "prima facie case", "balance of convenience"
and "irreparable loss", must also take into consideration the conduct of the parties. In the case at hand, interestingly, plaintiff though himself brought to the notice of the Court factum with regard to mutual settlement arrived interse parties after the death of Shri Ganga Dass Sood and thereafter possession of co-owners in the specific portion of the properties, but suppressed material factum with regard to earlier litigation interse plaintiff and defendants, may be criminal, but the allegation that defendants obstructed their entry to top floor through main entrance of the Hotel Chanakya is otherwise vague. Once it is not in dispute that ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 25 defendants being co-owners in the suit land are running the Hotel Chanakya for more than three decades, plea set up by the plaintiff .
that he being co-owner is entitled to use every inch of the property, which is still un-partitioned cannot be accepted. Once as per mutual understanding parties have been put to possession of their respective shares and such arrangement is in existence for more than 40 years, plea of property being not partitioned cannot be of raised to defeat the claim of other parties, which is otherwise flowing from the mutual understanding interse parties.
22. rt Leaving everything aside, this Court finds that once passage through main entrance of the Hotel Chanakya is blocked/obstructed one month prior to the filing of the suit, as has been claimed in the plaint, there was no occasion for the Court below to otherwise direct defendants to remove the lock put on the main gate that too while granting ad-interim injunction.
While passing order, if any, of ad-interim injunction Court can definitely stop/prevent other party from doing something which is yet to be done or has not been done, but, admittedly where locks were put much prior to filing of the suit, Court could not have ordered to reopen the same by granting ad-interim injunction. No doubt, Court while exercising powers under Order 39 Rules 1 & 2 CPC can order status quo ante but for that purpose party seeking order is required to establish that action of opposite party sought to be undone is not only illegal but against the factual position ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 26 available on the spot. In the case at hand, entry of the plaintiff to top floor was allegedly stopped one month prior to filing of the suit, .
which assertion made by the plaintiff itself suggests that for the last one month he and his family had been using alternative path leading to his house as has been alleged by the defendants in their written statement as well as reply to the application.
23. Judgment passed by Coordinate Bench of this Court of in Roshani Devi and Others vs. Suresh Kumar, 2017 SCC Online HP 2636 pressed into service by Mr.R.L. Sood, learned rt Senior Counsel for the plaintiff, is not of much help to the case of the plaintiff. In the aforesaid case, Coordinate Bench of this Court has held that every co-owner has every right over every each inch of land and the possession of one co-sharer is possession of all, therefore, the co-sharer cannot change the nature of the suit land to the detriment of another co-owner unless the land is partitioned or can do so with the consent of other co-sharers.
24. There cannot be any quarrel with the aforesaid proposition of law laid down by the Co-ordinate Bench of this Court, which is entirely based upon number of judgments passed by Hon'ble Apex Court. Most importantly, Co-ordinate Bench of this Court has held that co-sharer cannot change the nature of the suit land in dispute unless it is partitioned; however, he can do so with the consent of other co-owners. In the case at hand, admittedly, the property is yet to be partitioned but with the ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 27 consent of co-sharers all the co-sharers are in specific possession of their respective shares and have been using the same without .
any obstruction or hindrance for the last more than three decades as has been stated by the plaintiff himself in the plaint. Consent of the co-sharers may not be in written form but definitely can be inferred from the conduct of parties. In the case at hand, plaintiff himself has stated in the plaint that as per mutual understanding of all the co-sharers were given specific share in the property;
meaning thereby with the consent of co-sharers, they are residing rt in the separate portions of the property.
25. Similarly judgment pressed into service by Mr.R.L. Sood, learned Senior Counsel representing the petitioner, passed by Hon'ble Apex Court in case titled as Jai Singh and Others vs. Gurmej Singh, (2009)15 SCC 747, is of no help to the petitioner.
In the aforesaid judgment it has been categorically held that where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to anybody to disturb the arrangement without the consent of others except by filing a suit for partition. The Hon'ble Apex Court in the aforesaid judgment has held as under:-
"9. It is to be noted that the subsequent Full Bench judgment in Bhartu's case (supra) the earlier decision in Lachhman Singh's case (supra) was distinguished on facts. The principles relating to the inter-se rights and liabilities of co- sharers are as follows:::: Downloaded on - 06/09/2023 21:40:12 :::CIS 28
(l) A co-owner has an interest in the whole property and also in every parcel of it.
(2) Possession of joint property by one co-owner is in the eye of law, possession of all even if .
all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-owner by another.
of But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-
owner must not only be exclusive but also hostile to the knowledge of the other as, rt when a co-owner openly asserts his own title and denies, that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co- owners.
(7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition."
26. In the case at hand, there is enough material available on record suggestive of the fact that pursuant to mutual understanding parties are residing separately for more than three decades and one of the party has already filed suit for partition and as such arrangement, if any, pursuant to mutual settlement ::: Downloaded on - 06/09/2023 21:40:12 :::CIS 29 cannot be allowed to be disturbed without the consent of others, especially, till the date of decision in the partition proceedings.
.
27. Mr.Y.P. Sood, learned counsel representing the defendants also raised issue with regard to limitation. He submitted that cause of action had actually accrued to the plaintiff in the year 2016 when for the first time allegedly defendant put lock on the main door. But this Court is not required to go into of that question for the reason that even if plea set up by the plaintiff in the plaint that lock was put on the door of the passage leading rt to the top floor through main entrance one month back, is accepted, even then relief sought as ad-interim injunction could not have granted in his favour for the detailed discussion made hereinabove.
28. Having scanned entire material available on record, this Court finds no illegality and infirmity in the judgment as well as order passed by the Courts below, which otherwise appear to have been passed after proper appreciation of facts as well as law.
By no stretch of imagination, it can be concluded that findings returned by learned District Judge are not based upon proper facts and law and same are perverse to the extent that no reasonable person can possibly come to such a conclusion, if it is so, petition otherwise filed under Article 227 of the Constitution is not maintainable.
::: Downloaded on - 06/09/2023 21:40:12 :::CIS 3029. Consequently in view of detailed discussion made hereinabove as well as law taken into consideration, this Court .
finds no illegality and infirmity in the impugned order passed by learned Court below and as such same is upheld and the present petition is dismissed being devoid of any merit.
30. Interim order, if any, is vacated. All the miscellaneous applications are disposed of.
of
September 5, 2023 (Sandeep Sharma)
(aks) rt Judge
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