Rajasthan High Court - Jaipur
Radha Mohan vs Shri Narain (2023:Rj-Jp:13144) on 3 July, 2023
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 134/1983
Radha Mohan Lal S/o Shri Nand Kishore Sharma, Resident of
Jaipur (Deceased) represented by:
1.1 Ratan Lal S/o Radha Mohan Lal (Deceased) Represented
by:
1.1.1 Kishan Lal Sharma S/o Ratan Lal Sharma (Deceased)
Represented by:
1.1.1/1 Smt. Hem Lata Sharma W/o Lt. Kishan Lal Sharma
1.1.1/2 Pradhuman Sharma S/o Shri Lt. Kishan Lal Sharma
Both r/o plot no E-204, Ram Nagar Ext., Kataria Colony, New
Sanganer Road, Sodala, Jaipur.
1.1.2 Vijay Kumar Sharma S/o Ratan Lal Sharma R/o plot no E-
204,Ram Nagar Ext., Kataria Colony, New Sanganer Road,
Sodala, Jaipur.
1.1.3 Kedar Nath Sharma S/o Ratan Lal Sharma, R/o Plot no 17,
Shivpuri Colony, New Sanganer Road, Sodala, Jaipur.
1.1.4 Smt. Lalita Sharma W/o Ratan Lal Sharma, r/o Plot No F-
40A, Ghiya Marg, Banipark, Jaipur.
1.1.5 Smt. Sunita Sharma D/o Ratan Lal Sharma r/o Plot no 854,
Ram Nagar Colony, Shastri Nagar, Jaipur.
1.2 Shri Hari Narayan S/o Radha Mohan Lal.
1.3 Shiv Narain s/o Radha Mohan Lal (Deceased) represented
by:
1.3.1 Smt Puspawati Sharma W/o Shiv Narain Sharma
1.3.2 Lalit Kumar Sharma S/o Shiv Narain Sharma
1.3.3 Anant Kumar Sharma S/o Shiv Narain Sharma
1.3.4 Bhanu Kumar Sharma S/o Shiv Narain Sharma.
1.3.1 to 1.3.4 resident of plot no 16, Shivpuri Colony, New
Sanganer Road, Sodala, Jaipur.
1.3.5 Smt. Neetawati Sharma D/o Shiv Narain Sharma W/o Vijay
Kumar Vashisth, resident of Malliyo ka mohalla, Chandpole,
Jaipur.
1.4 Smt. Gopi D/o Radha Mohan W/o Gopal Lal(Deceased)
represented by:
1.4.1 Smt. Chagi Bai D/o Late Gopi W/o Prahlad Sharma resident
of Sanganer, Jaipur
1.5 Smt. Shanti Devi D/o Radha Moahan W/o Ram Swaroop
Sharma (Deadeased) represented by:
1.5.1 Rajendra Kumar Sharma S/o Shanti Devi and Ram
Swaroop Sharma, R/o Hida ki Mori near Police Chowki,
Ramganj Bazar, Jaipur.
1.6 Kanchanwati D/o Radha Mohan Lal W/o Bajrang Lal, R/o
Behind Choudhary Dharmshala, New Colony, Dausa.
----Appellants-Defendant
Versus
Shri Narain S/o Pooran Chand, Bawriwala (since dead) now
represented by the following:
1/1 Smt Bhagwati Devi W/o Shri Narain.
1/2 Laxman Sharma S/o Shri Narain.
1/3 Yogesh Sharma S/o Shri Narain.
(Downloaded on 11/11/2023 at 06:04:42 PM)
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1/4 Smt. Daya D/o Shri Narain
All resident of 2451-2452, near Kabristan, Agra Road, Jaipur.
1/5 Smt. Pramila D/o Janardhan Sharma (deceased)
1.5/1 Ravi Sharma S/o Pramila & Janardhan Sharma R/o 36,
Everest Colony, Lal Kothi, Jaipur.
----Respondents-Plaintiff
For Appellant(s) : Mr. Abhay Bhandari, Sr. Advocate assisted by Mr. Kedar Nath Sharma For Respondent(s) : Mr. M.F. Baig with Mr. Govind Gupta HON'BLE MR. JUSTICE SUDESH BANSAL Judgment Reserved On: 2nd June, 2023 Pronounced On: 3rd July, 2023 REPORTABLE:
The civil suit for permanent injunction and for demolition of construction allege to be made on the joint portion of Chawk (चौक), Pol (पोल), and open land, bearing civil suit No.135/1969 titled as Shri Narain Vs. Radha Mohan Lal was dismissed by the Civil Judge (Jr. Division) East Jaipur City (hereinafter referred to "the Trial Court") vide judgment and decree dated 26.08.1976 but on filing the first appeal by the plaintiff- Shri Narain, the First Appellate Court set aside the judgment and decree dated 26.08.1976 passed by the Trial Court and decreed the civil suit in favour of plaintiff and against the defendant vide judgment and decree dated 16.04.1983 (19.04.1983), hence feeling aggrieved by the decree for demolition of construction, the original defendant-
Radha Mohan Lal has preferred the present civil second appeal under Section 100 CPC. The operative portion of the impugned judgment and decree dated 16.04.1983 (19.04.1983) passed by (Downloaded on 11/11/2023 at 06:04:42 PM) (3 of 38) [CSA-134/1983] the First Appellate Court in civil first appeal No.4/1977 is being extracted hereunder:-
आदेश "प्रतरतिविवादादी रसपोोनपोन्डेन्ट किवा का कोस - ऑबऑेकजेक्शन न ख़िवाख़ाररऑ तककियिवा ऑिवारतििवा हत । अपादीलिवाोन्डेन्ट क् अपादील मंऑरू क् ऑिवारतिादी हत व विवादादी किवा दिवाविवा तपका क् तककियिवा ऑिवाकर आदजेक्श तदकियिवा ऑिवारतििवा हत तक प्रतरतिविवादादी रसपोोनपोन्डेन्ट विवाद पत्र क चरण संण संखकियिवा -2 मम वतणण रति तनमिवाणण बरिवामदिवा व ऑादीनिवा 17 फु्डेन्ट 10 '× 8 '-9 ' ' व उसक उपर दूसर खणप मम बरिवामदिवा व ऑादीनिवा ह्डेन्टिवाल व ऑादीनिवा ऑो 9 फु्डेन्ट - 6" × 1'-5 ½'' ऑमादीन दबिवालादी हत उस खिवालादी रख । कियह नक़जेक्श एगऑ. 1 मम (क ) (ख) (ग) स बरतििवाकिय गकिय हत। प्रतरतिविवादादी रसपोोनपोन्डेन्ट पतश्चिम मुखादी कमर क आग किवा चबरति ू रिवा 8 ' - 6 ''x 27 ऑो एगऑ न-1 मम (घ) स बरतििवाकियिवा गकियिवा हत, ह्डेन्टिवाल। प्रतरतिविवादादी रसपस्पोंपम्डेन्ट को कियह यह भादी आदजेक्श तदकियिवा ऑिवारतििवा हत तक वह ऑो नक़जेक्श एगऑ -1 मम प फ, ब, यह भ मम रतििवामादीर हत उसको यह भादी ह्डेन्टिवा तलकियिवा ऑिवाव। प्रतरतिविवादादी रसपस्पोंपम्डेन्ट को आदजेक्श तदकियिवा ऑिवारतििवा हत व तनषिषेदिवाेद्याजिवा याज्ञा दिवारिवा पिवाबंद तककियिवा ऑिवारतििवा हत तक उक्त रतििवामादीरिवारति ह्डेन्टिवान क बिवाद सतसमतलरति यह भतू म ऑो विवाद पत्र क चरण संण संखकियिवा २ (ग) मम वतणण रति हत, रतिथिवा हवलादी क पादीछ विवालादी सतसमतलरति यह भतू म व चौक, पोल मम यह भतवषकिय मम तकसादी प्रकिवार क कोई तनमिवाणण किवाकियण नहनहीं कर न करिवाव व विवादादी को सतसमतलरति उपयह भोग स वंतचरति नहनहीं कर। प्रतरतिविवादादी रतििवामादीरिवारति 4 महादीन मम ह्डेन्टिवाल । खचिवाण दिवाविवा व अपादील अपादीलिवाोन्डेन्ट प्रतरतिविवादादी रसपस्पोंपम्डेन्ट स पिवावगिवा । नेकजेक्शिवा एगऑ-1 ऑुऑ पचिवाण तपका क् रहगिवा । "
2. Necessary and relevant facts, as culled out from the record, are that:
2.1 Original respondent-plaintiff Shri Narain happens to be nephew of original appellant-defendant Shri Radha Mohan Lal and he instituted the present civil suit way back on 10.03.1969 stating inter alia that in the double story Haveli north facing situated near Kabristan Agra Road, Jaipur, separate house of both parties are constructed but chawk(चौक), Pol (पोल), and open land in front of pole and land of back portion of the Haveli are joint property of parties.
2.2 Plaintiff pleaded in the plaint, inter alia that the defendant has raised construction of covered pakka porch, stairs and chabutara etc. without his consent on the joint property of Chawk, Pol, and open land of front side of Haveli. Such disputed construction was shown by cross lines in red colour in the map appended with the plaint (Ex.1) and description of same was mentioned in para 2 (क, न ख़, and ग) of the plaint. It is worthy to (Downloaded on 11/11/2023 at 06:04:42 PM) (4 of 38) [CSA-134/1983] take note that basically the plaintiff sought demolition of disputed construction alleging it to be made by the defendant on the joint portion of Chauk and open land, in order to maintain, restore and protect the joint use and possession of such common portion and incidentally, also prayed for the decree of permanent injunction not to deprive the plaintiff in future from use and occupation of joint property. It would be apposite to reproduce the relief prayed for by the plaintiff in the plaint at verbatim hereunder:-
"(क) विवाद प्रतरतिविवादादी क तवरुद्ध ्ध वकियकिय ोनकियिवाकियिवालकिय सतहरति तपका क् तककियिवा ऑिवाकर तनमिवाणण किवाकियण वतणण रति चरण २ प्रतरतिविवादादी क ्ध वकियकिय स रतिुड़विवाकिय ऑिवावम व विवादादी को सतसमतलरति कबििवा तदलविवाकियिवा ऑिवाव ।
(न ख़) प्रतरतिविवादादी को सथिवाकियादी तनषेधिवाेद्याजिवा याज्ञा दिवारिवा बिवाा बाधकिय तककियिवा ऑिवाकिय तक वो विवाद पत्र क चरण २ (ग) मम वतणण रति सतसमतलरति यह भतू म रतिथिवा हवलादी क पादीछ विवालादी सतसमतलरति यह भतू म व चौक पोल मम यह भतवषकिय मम तकसादी प्रकिवार किवा कोई तनमिवाणण किवाकियण न कर न करिवाव न विवादादी को इनक सतसमतलरति उपकियोग स तकसादी प्रकिवार यह भादी वंतचरति कर । (ग) अोनकिय अनुरतिोष ऑो विवादादी क तहरति मम दनिवा ोनकियिवाकियिवालकिय उतचरति समझ तदलिवाकियिवा ऑिवाव"
2.3 Defendant submitted his written statement on 27.05.1969 and contested the suit pleading inter alia that the disputed construction of Porch (बिवारिवांदिवा), stairs (सादीत़िकियिवाा), Chabutara etc. is old construction and same was raised with the consent of plaintiff's mother and is well within knowledge of plaintiff as well since long. The defendant also disputed the fact that his construction was not made on the joint portion of chawk, pol and open land and in order to show the actual and separate possession of parties over the Haveli in question, defendant enclosed one site map (Ex.A1), with the written statement showing that the Maroon Colour (कतथई) is the portion of plaintiff, his brothers and their mother, and the portion shown by Yellow colour (पादीलिवा) is of defendant. In the site map produced by the defendant, the joint portion of common chawk, pol was indicated by cross lines in blue (नादीलिवा) colour. (Downloaded on 11/11/2023 at 06:04:42 PM)
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3. Having perused both site maps of the Haveli in question (Ex.1 and Ex.A1), it appears that although the area of open land lying behind the Haveli has been admitted by both parties as joint and common property, but defendant has disputed the entire portion of chawk and pol as shown by cross red lines in red colour by the plaintiff, to be a portion of common and joint use but has shown a shorter portion as indicated in the map produced by the defendant (Ex.A1) by cross lines in blue colour, to be the portion of common and joint use of chawk and pol in the Haveli.
4. Facts which have transpired from the record are that the Haveli in question is jointly inherited property by two brothers namely Pooran Chand and Shri Radha Mohan Lal from their father late Shri Nand Kishore Sharma. One brother Pooran Chand passed away and was survived by his widow Nathi Devi and three sons namely; Shri Narain, Satya Narain and Swaroop Narain. All step in the shoe of late Shri Pooran Chand. It is not the case of either party that the Haveli in question had been partitioned by meets and bounds between two brothers i.e. Pooran Chand and Radha Mohan Lal. As a matter of fact, after death of Pooran Chand, his one son Shri Narain alone filed the present civil suit against his uncle Shri Radha Mohan Lal alleging to raise construction of varanda, stairs and chabutara etc. by defendant on the joint and common portion of chawk and pol. The defendant denied his construction of Varanda, stairs and chabutara etc. on the common and joint portion of chauk and pole and also raised a plea that the present civil suit filed in respect of claiming a right over the joint property has been filed by the plaintiff alone being successor of (Downloaded on 11/11/2023 at 06:04:42 PM) (6 of 38) [CSA-134/1983] late Pooran Chand, whereas other successors of late Pooran Chand i.e. his wife and other two sons are the necessary party to be impleaded, hence without impleadment of other successors of late Pooran Chand, the present suit is not maintainable.
5. From perusal of pleadings of parties and the material on record, it stands clear that before the Trial Court, although both parties admitted to have construction of separate portion, on the inherited property of Haveli but admitted that the portion of chawk and pol, open land lying in front of pole and open land lying behind the constructed portion in Haveli, are joint and common between parties. It is further to be noted that there is a dispute between parties as to whether the portion on which the disputed construction was made by the defendant is a portion of common and joint property of chawk and pol. The present suit was not filed for partition and for separate possession, but was filed for injunction and demolition of the construction of Varanda, stairs and chabutara etc. in order to maintain and protect the portion of common chawk and pol for the purpose of joint use and occupation.
6. Learned Trial Court framed issues and granted opportunity to adduce evidence by both parties. From the side of plaintiff, seven witnesses including plaintiff deposed their statements and site map produced by the plaintiff along with the plaint was exhibited as Exhibit-1. Other documentary evidence was also produced. From the side of defendant, as many as six witnesses including the defendant deposed their statements and documentary evidence too was produced including their site map as (Ex.A1). (Downloaded on 11/11/2023 at 06:04:42 PM)
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7. Learned Trial Court, vide judgment and decree dated 26.08.1976 dismissed the plaintiff's suit, fundamentally on the basis that the plaintiff (PW-1) admitted the site map (Ex.A1) produced by the defendant. The plaintiff preferred first appeal against the judgment and decree of Trial Court dated 26.08.1976. The First Appellate Court, having perused the evidence of plaintiff as a whole observed that the admission by the plaintiff about the site map produced by the defendant, made in the cross- examination has been clarified by the plaintiff in his further statement just in the next line, but the Trial court did not advert to the evidence as a whole. The First Appellate Court, after weighing the respective evidence of both parties, observed that the Haveli inherited by parties has not partitioned and plaintiff has preferred present suit in respect of joint portion of chawk and pol for himself and on behalf of his mother & two brothers as well and also recorded a finding that the defendant has no right to raise construction over the joint portion of chawk and porch (varanda), without consent of plaintiff, hence the First Appellate Court passed the decree for demolition of construction of the defendant. In such circumstances, the defendant has assailed the judgment and decree dated 16.04.1983 (19.04.1983) passed by the First Appellate Court by way of instant second appeal.
8. During the course of second appeal, the original appellant- defendant and original respondent-plaintiff passed away and their legal representatives have come on record.
9. During the course of pendency of the present second appeal, some subsequent events took place and appellant filed an (Downloaded on 11/11/2023 at 06:04:42 PM) (8 of 38) [CSA-134/1983] application under Order 41 Rule 27 CPC dated 06.07.2006, to bring such subsequent events on record. This Court vide order dated 01.01.2015 directed to consider application under Order 41 Rule 27 CPC filed by the appellant alongwith the appeal. Respondents neither have filed any reply to this application nor have controverted the alleged subsequent events nor have chosen to file any rebuttal evidence to such subsequent events, hence this application shall also be considered and decided in the present judgment itself.
10. In the present second appeal, following substantial questions of law have been framed for consideration:-
"1. whether in the face of admissions by the plaintiff in his plaint and in his statement and in the statement of his witnesses the admissions are final and binding upon the plaintiff that the parties are in separate possession of lands and constructions and the intention of the partition is spelt out of them vide R.L.W. 1971 P.541, A.I.R.1979 S.C. 861., AIR 1982 Ca.342.
2. whether present suit for injunction and demolition is maintainable and whether instead a suit for partition should have been filed?
3. Whether in the facts and circumstances of the present case the non-consideration of the oral and documentary evidence of the parties and the non-application of the mind of the Addl. District Judge to the facts of the present case vitiates the judgment of First Appellate Court and the finding of the First Appellate Court is not binding upon this court in the Second Appeal?"
11. Heard learned counsel for both parties, perused the record.
12. Having a close and deeper reading of the substantial questions of law No.1 and 2, it prima-facie appears that the appellant-defendant has sought to take double stand, which is self (Downloaded on 11/11/2023 at 06:04:42 PM) (9 of 38) [CSA-134/1983] contradictory too. In the first substantial question of law, appellant-defendant sought to draw a presumption of partition of the Haveli in question between the parties, on account of having separate possession of lands and constructions since long period of time and therefore, such separate possession and construction by parties has been sought to be spelling out the intention to presume the partition of the property of Haveli. At the same time, in substantial question of law No.2, the appellant-defendant pleads that the plaintiff has not filed a suit for partition, to divide the joint property of chawk, pol and open land in the Haveli in question. The third substantial question of law pertains to perversity on the part of the First Appellate Court in reversing findings of the trial court and recording a fresh findings to pass the impugned decree. In the opinion of this Court, according to the pleadings of parties and evidence adduced by the parties in respect of their pleadings as also having adverted to the subsequent events occurred during the course of present second appeal which have material bearing on the status of parties as also on the present status of the Haveli in question, all three substantial questions of law may be dealt with simultaneously and separately hereunder:-
Substantial Question of Law No.1:-
12.1 Counsel for appellants-defendant would submit that since parties have been living separately for years together in their respective separate portion of the joint property of haveli, hence a conclusion has to be drawn that there was virtual or defacto partition and now, the open land has also been claimed to be divided by raising independent construction by the parties, then in (Downloaded on 11/11/2023 at 06:04:42 PM) (10 of 38) [CSA-134/1983] such circumstances, an irresistible conclusion comes in light that virtually both parties have partitioned the joint property at site.
12.2 In support of submissions, appellants have sought to take benefit of an admission of the plaintiff in his cross-examination about having the separate possession by parties as indicated and shown by different colours in the map produced by the defendant (Ex.A1) with the written statement.
13. This Court finds that such stand of appellants-defendant, at the stage of second appeal, is not in consonance and in conformity to his basic defence, taken in the written statement. In the written statement, the defendant has pleaded that the haveli in question is an inherited property, on which parties are having separate possession as shown in the map appended with the written statement. The Maroon (कतथई) colour portion was claimed to be in possession of plaintiff alongwith his two brothers and mother, all successors of late Pooran Chand and the yellow colour portion was claimed to be in possession of defendant. The portion shown without colour as an open land was admitted to be joint property between parties and for common chawk and pol, the portion indicated with cross lines in blue colour was said to the joint property.
13.1 But it is not clear and specific defence of defendant in written statement that the Haveli in question as a whole has been partitioned between parties. Indeed, only in order to protect the constructions of double storied porch (varanda), stairs and Chabutara, sought to be demolished by the plaintiff, defendant took such plea of separation of possession and construction of (Downloaded on 11/11/2023 at 06:04:42 PM) (11 of 38) [CSA-134/1983] parties to plead acquiescence on the part of plaintiff. Thus, the case sought to be set up at the stage of appeal, to draw a conclusion and presumption of de-facto partition of Haveli in question between parties, although by placing reliance on the admission of plaintiff, itself is not in conformity to the basic defence of the defendant taken in written statement. 13.2 Learned First Appellate Court also discussed this aspect in the impugned judgment and observed that the defendant cannot take a double stand. The First Appellate Court noted that at one hand defendant's counsel argued that the plaintiff ought to have bring suit for partition and on the another hand, defendant's counsel sought to take a plea of inferential partition of haveli on the basis of an admission of the plaintiff in his cross-examination. 13.3 This Court does not find any perversity in such observations of the First Appellate Court and not inclined to draw any presumption of de-facto partition of the Haveli in question between parties. In addition, drawing such a presumption of partition would travel beyond the scope of the present suit which has been brought in the nature of a suit for injunction and demolition of the construction, in order to maintain, restore and protect the joint possession of the land in Haveli. The prayer made by the plaintiff in the plaint which has already been extracted hereinabove also do not suggest to claim a partition by the plaintiff in present suit. There is no counter claim of defendant to draw a presumption of partition between the parties. Thus, the argument from the side of appellants-defendant to presume a de- facto partition of the Haveli in question is not acceptable at the (Downloaded on 11/11/2023 at 06:04:42 PM) (12 of 38) [CSA-134/1983] stage of second appeal. But it is not clear and specific defence of defendant in written statement that the Haveli in question as a whole has been partitioned between parties. Indeed, only in order to protect the constructions of double storied porch (varanda), stairs and Chabutara, sought to be demolished by the plaintiff, defendant took such plea of separation of possession and construction of parties to plead acquiescence on the part of plaintiff. Thus, the case sought to be set up at the stage of appeal, to draw a conclusion and presumption of de-facto partition of Haveli in question between parties, although by placing reliance on the admission of plaintiff, itself is not in conformity to the basic defence of the defendant taken in written statement.
14. Reliance on the judgment of Sita Ram vs Suraj Bai [1971 RLW 541], sought to be placed by leaned counsel for the appellants-defendant is of no help in the present case because there was a dispute between the parties about the partition itself and arose out of a suit for partition. The plaintiff's case was that no partition took place with respect to the house in question, whereas the defendant pleaded that there had been a partition of the ancestral property in question between both parties long back. In that backdrop of factual matrix, the Court draw an irresistible conclusion that there was in fact a virtual or de-facto partition, because the intention of parties is manifested by their sole and independent enjoyment of apartments in their possession. But in the present case, firstly the lis between the parties does not arise out of a suit for partition, and secondly, the plaintiff prayed for in the plaint to restore the joint possession by demolition of the (Downloaded on 11/11/2023 at 06:04:42 PM) (13 of 38) [CSA-134/1983] construction of defendant alleged to be made on the joint portion of chawk and pol and lastly, the defendant himself took a plea before the trial Court as also before the First Appellate Court that plaintiff ought to have brought the suit for partition and defendant also has not asked for partition. Thus, this judgment does not apply to the facts of present case.
15. Learned counsel for the appellant has also referred other judgments of Patna High Court in case of Ganesh Sahu & Anr Vs. Dwarika Sao and Ors [AIR 1991 Patna 1], the judgment of Hon'ble Supreme Court in case of Gannmani Anasuya & Ors vs Parvatini Amarendra Chowdhary &Ors [2007 (2) Apex Court Judgments 744 (SC)] to draw a presumption of partition of Haveli in question by taking the admission of plaintiff as an absolute admission and on account of disruption of the joint family since long period of time. But as a matter of fact, as has been discussed hereinabove that the present lis is not about a partition, the arguments of learned counsel for the appellants-defendant to draw a presumption of partition is not acceptable, hence reliance on both judgments, is misplaced on the part of appellants, in the present case.
16. As far as admission by the plaintiff in his plaint and in his statement is concerned, the First Appellate Court has discussed the evidence of plaintiff and his witnesses as a whole as well as the defendant's evidence. The First Appellate Court has recorded a fact finding that there is no clear and unambiguous admission of plaintiff about having separate possession by the parties over the (Downloaded on 11/11/2023 at 06:04:42 PM) (14 of 38) [CSA-134/1983] property of Haveli in specific terms as claimed by the defendant in his site map (Ex.A1).
16.1 In the plaint itself plaintiff pleaded that the portion of chawk, pol and open land lying in front of Haveli and in the back portion of Haveli is common and joint property. In cross-examination, plaintiff though admitted the separate construction and possession of parties thereupon on maroon colour and yellow colour portions, as shown in the site map (Ex.A1) but made a clarification that all open land in the Haveli either shown by colour or not, is common and joint among all parties. Even in the site map (Ex.A1) too, the open land which has not indicated with any colour has been shown as joint property between the parties. In view of clarification made by the plaintiff (PW-1), even the portion of Haveli shown by the Maroon (कतथई) colour and yellow colour, cannot be presumed to be separated between the parties by way of a valid and lawful partition, more so when open land is admittedly continuing to be joint property between parties. Similarly, there is no any other specific admission of any of the witness of plaintiff about the separate possession and partition of the open land situated in the Haveli.
16.2 The First Appellate Court has clarified that the trial Court committed illegality in reading the admission of plaintiff in isolation and did not read the evidence of plaintiff as a whole. The First Appellate Court read and appreciated the evidence of both parties as a whole and then recorded a finding of fact that there is no admission of plaintiff about the partition of the open land in question, on which the disputed construction was made by the (Downloaded on 11/11/2023 at 06:04:42 PM) (15 of 38) [CSA-134/1983] defendant. To this extent, this Court does not find any perversity in such fact findings of the First Appellate Court, hence, such findings do not call for any interference by this Court, which exercising its jurisdiction under Section 100 CPC.
17. Counsel for the appellants-defendant placed reliance on the judgments of Hon'ble Supreme Court in case of Avadh Kishore Dass Vs. Ram Gopal and Ors [AIR (1979) SC 861] and Jugal Kishore Kundu (deceased by LRs) & Ors Vs. Narayan Chandra Kundu and Anr.[AIR (1982) Calcutta 342], to contend that the admission made by the party is decisive on the point and if not treated as conclusive or decisive at least, such admission leads to an estopple against that party and shifts the burden to prove on the opposite party or his representative in interest.
18. The proposition of law as set-forth in both judgments do not invite any quarrel, but in view of discussion of factual aspect hereinabove and which has been considered by the First Appellate Court also that there is no clear and unambiguous admission on the part of plaintiff or his witnesses about the separate possession of parties over the disputed portion of property by way of partition, therefore, both judgments do not render any support to appellants, to decide the substantial question of law No.1 in favour of appellants. Hence, the reliance on both judgments by learned counsel for both parties is misplaced in facts and circumstances of the present case. Thus, substantial question of law No.1 stands decided accordingly and is held against appellants. Substantial Question of Law Nos.2 & 3:-
(Downloaded on 11/11/2023 at 06:04:42 PM)
(16 of 38) [CSA-134/1983]
19. As far as substantial question of law No.2 is concerned, it is suffice to observe that undisputedly, the plaintiff filed the present suit only for seeking injunction and demolition of construction alleged to be made on the joint portion of common chawk and pol and it has already been observed hereinabove that it was not the case of either of the party before the courts below that the property of Haveli in question has been partitioned between parties. The First Appellate Court clearly recorded such fact findings against the defendant but the First Appellate Court passed the decree for demolition of the construction raised by the defendant taking a view that the construction raised by the defendant on the joint portion of Haveli was not raised with the consent of the plaintiff and therefore, such construction on joint portion of Haveli in question cannot be maintained. The plea raised by learned counsel for the defendant that a suit for partition ought to have been filed by the plaintiff, was too repelled.
20. In the opinion of this Court, it is not for the Court to suggest parties to brought as to which nature of civil suit i.e. for the partition or for an injunction or to that of any other nature but the Court has to and is required to adjudicate the lis within the nature of relief as prayed for by the parties and within the scope of the suit brought by the party before the Court.
21. In the case at hand, when the plaintiff himself has brought a suit only for injunction and for demolition of construction, basically for the purpose to maintain, restore and protect the joint possession, then the Court is required to examine as to whether in spite of not filing a suit for partition, the construction of defendant (Downloaded on 11/11/2023 at 06:04:42 PM) (17 of 38) [CSA-134/1983] made on joint portion of the Haveli in question, can be ordered to be demolished or not?
22. The First Appellate Court itself although has come to a conclusion and recorded fact findings that the property of Haveli in question, more particularly, open land lying in the Haveli in question was not partitioned between the parties yet the First Appellate Court passed the decree for demolition of the construction of defendant, alleged to be made on joint property.
23. This Court in the present second appeal is required to consider as to whether the decree passed by the First Appellate Court is sustainable in law within the nature and scope of the present suit filed by the plaintiff. The substantial question of law No.3 also revolves around the similar consideration by this Court.
24. As has already been observed hereinabove that there is no wrong on the part of the First Appellate Court in recording a fact finding that there was no partition of the open land of the Haveli in question, including the disputed portion of the common chawk and pol of Haveli but the First Appellate Court committed perversity and jurisdictional error in not adverting to the aspect as to since how long time ago the disputed construction by the defendant over the alleged common portion of chawk and pol was raised? and further after how long period, the plaintiff instituted the present suit for demolition of such construction? and whether apart from the plaintiff, his mother and two brothers had any consensus with the plaintiff for seeking demolition of the disputed construction of defendant? The First Appellate Court has passed impugned decree for demolition without pondering over the other (Downloaded on 11/11/2023 at 06:04:42 PM) (18 of 38) [CSA-134/1983] relevant factors, which are necessary to be considered before passing a decree for mandatory injunction for demolition of construction on the joint property.
25. The First Appellate Court committed perversity as also misdirected itself by recording a finding that it is not that case where the defendant has pleaded that construction over the joint portion of chawk and pol was made after obtaining the consent of plaintiff whereas as a matter of fact, from perusal of the written statement of defendant, it clearly transpires in special plea para No.10 and 13, that the defendant has specifically pleaded that the disputed construction is old one and was raised long time ago that too within the knowledge of plaintiff and with the consensus of the plaintiff's mother. The defendant also took specific plea that the non-impleadment of plaintiff's mother and plaintiff's two brothers as party in the present suit alongwith the plaintiff is fetal for maintainability of the present suit.
26. Taking into consideration the nature and scope of present suit that is only for injunction and demolition of construction, this is an important factor to consider as to at what point of time and how long ago, the disputed construction of porch, stairs and chabutara etc. was made by the defendant over the alleged joint portion of common chawk and pol of the Haveli. It is worthy to note that the plaintiff has prayed for an injunction in mandatory form to demolish the construction of double storied porch, stairs, varanda etc. as detailed out in para No.2 क, ख, ग which have already been constructed by the defendant but nowhere indicated the date, month or year of raising such construction by the (Downloaded on 11/11/2023 at 06:04:42 PM) (19 of 38) [CSA-134/1983] defendant. Neither any particular time has been incorporated in the plaint pleadings nor specific evidence in this respect has been adduced.
26.1 Plaint was instituted on 10.03.1969 and in statements of plaintiff-Shri Narain (PW-1) recorded on 08.04.1974 and 09.04.1974, he admitted in his cross-examination that "I do not reside in the Haveli and my mother lives there. My mother told him about such construction, I have not been living there since about 15 years". PW-2, PW-3 and PW-4 stated that the defendant Radha Mohan has raised construction of room and chabutara, in the common chawk since 5-6 years. The plaintiff has produced documents Ex.2, Ex.3 and Ex.4 to show that permission to raise construction over the land of haveli in question was taken by the defendant from Municipal Council, Jaipur on 11.07.1957, the map was also sanctioned by the Council but construction has not been raised by the defendant as per sanctioned map. PW-1 himself, in cross-examination, admits that room was constructed by the defendant 15 years ago and porch (varanda) was constructed, 5-6 years ago. PW-2 admits in his cross-examination that the disputed new construction was not raised in his presence and he is residing in the Haveli as tenant of plaintiff, since 6-7 years. PW-3 admits in his cross-examination that he cannot say as to how many years ago, the disputed chabutara was constructed. PW-4 is son-in-law of plaintiff, he admits that the disputed new construction was raised in the year 1963-64 but construction was not raised in his presence, he came to know about such construction in the year 1969.
(Downloaded on 11/11/2023 at 06:04:42 PM)
(20 of 38) [CSA-134/1983] 26.2 In rebuttal, the defendant Radha Mohan Lal (DW-6) deposed that the Pakka construction of disputed porch was made in near about 1957-58 or in the year 1960, other witnesses of defendant have supported the stand of defendant that construction of Porch was made 13-14 years ago. No specific cross-examination from the defendant and his witnesses on the issue of time period of raising disputed construction has been made.
26.3 It appears that despite availability of such evidence on record, the First Appellate Court has not pondered over on the point of time period of raising the disputed construction by the defendant, on the joint portion in Haveli in question. 26.4 The defendant, in his written statement para No.10, has pleaded that the plaintiff and his mother gave consent in the year 1960 to construct a room in front north-west side portion parallel to the room (baithak) of plaintiff in front open land. There is no rejoinder by plaintiff to controvert such plea. Defendant has deposed evidence in conformity to the construction including the disputed construction raised in the Haveli and which is in his possession and shown by yellow colour in the map (Ex.A1). The portion shown by the maroon colour in the map (EX.A1) has been alleged to be in possession of plaintiff, his mother and two brothers jointly. Defendant has clearly pleaded and also deposed that plaintiff's mother and two brothers are consensus to the construction and possession of defendant over the yellow colour portion and plaintiff has deliberately not impleaded his mother and two brothers as party in the present suit which is fatal for plaintiff to maintain the present suit. In this regard, plaintiff (PW-1) made (Downloaded on 11/11/2023 at 06:04:42 PM) (21 of 38) [CSA-134/1983] clarification in his evidence that he did not join his mother Nathi Devi and two brothers namely Satya Narain and Swaroop Narain as co-plaintiffs in the present suit because all three gave their consent to him and in respect of joint property, it is not necessary to implead all family members as party. PW-1 admits that they all live together.
26.5 The First Appellate Court, having considered the limited nature of present civil suit only for injunction and demolition of construction and not for partition of the Haveli, observed that the plaintiff being eldest son of Pooran Chand has filed present suit for himself also on behalf of his mother and two brothers as well, therefore, non-impleadment of other natural heirs of late Pooran Chand is not fatal for the present suit as this is not a suit for partition.
26.6 During the course of present second appeal, plaintiff's brother Satya Narain Sharma moved an application dated 25.08.1992 seeking his impleadment in the present appeal and although his application has been dismissed by this Court vide order dated 12.11.1992 with observation that the First Appellate Court itself has observed that the plaintiff has preferred present suit in the interest of all successors of Pooran Chand and non- impleadment of other natural heirs of late Pooran Chand in the present suit for injunction is not fatal and accordingly he was not allowed to be made party at the stage of second appeal. 26.7 But it is worthy to note here that in the application dated 25.08.1992 supported with affidavit of Satya Narain, the plaintiff's brother has stated that the defendant Radha Mohan raised the (Downloaded on 11/11/2023 at 06:04:42 PM) (22 of 38) [CSA-134/1983] disputed construction in the year 1960 with consent of his mother Smt. Nathi Devi. By such averments of plaintiff's brother, it appears that he is not supporting the plaintiff in filing and pursuing the civil suit for injunction and demolition of the construction of defendant on the joint property. The status of plaintiff's brother is similar to that of plaintiff as far as present suit is concerned, though he may not be impleaded by plaintiff as co- plaintiff but plaintiff himself stated in evidence that his mother and two brothers gave consent to him to file the present suit and this suit has been filed in the interest of all heirs of Pooran Chand. In this view the plaintiff and his mother and two brothers stands at similar platform and all step in the shoe of late Pooran Chand. 26.8 Counsel for the appellant has argued that mere declining to implead Satya Naain Sharma as party in the present second appeal and dismissing his application for impleadment, do not obliterate the averment made by him in the application from consideration and since the status of plaintiff's brother Satya Narain Sharma is too that of a co-plaintiff, the averment made by Satya Narain Sharma in his application dated 25.08.1992 stands binding upon the plaintiff as well. In support, counsel for the appellant has placed reliance on the judgment of Calcutta High Court in case of Dulal Chandra Adak And Anr. vs Gunadhar Patra And Anr [AIR (1998) Cal 150 ]. In this judgment, the Hon'ble High Court of Calcutta held that:-
"The admission of one of the parties having the same interest with that of another party who are fighting jointly for the same interest squarely binds the other."(Downloaded on 11/11/2023 at 06:04:42 PM)
(23 of 38) [CSA-134/1983] 26.9 This Court finds force in the contention made by learned counsel for the appellant and is of the view that on the basis of averment made in the application dated 25.08.1992, moved by the plaintiff's brother namely Satya Narain Sharma, at least it stands clear that he is not supporting the plaintiff in the present suit and to sustain the impugned decree. From this point of view the impugned decree for demolition, injunction in respect of joint portion in Haveli in question does not remain good and sustainable in the eye of law. The plaintiff's case that he filed present suit with consent of his mother and two brothers stands belied.
27. It is also noteworthy to consider that it is not the plaintiff's case that the defendant raised disputed construction over the alleged joint portion of chawk and pol despite resistance by the plaintiff or his family members. On the contrary, it is the defence by the defendant that the construction was made by the defendant well within the knowledge of the plaintiff and with the consent of plaintiff's mother. Plaintiff has not produced his mother to show that she ever resisted or opposed the defendant from raising the disputed construction. The plaintiff admits that his mother actually resides in the Haveli, so in such circumstances, the statements of mother would play an important role to support the plaintiff's case, if she had appeared and non-appearance of plaintiff's mother gives an adverse inference against the plaintiff and in favour of defendant.
28. Learned counsel for the appellant has placed reliance on the judgment delivered by the Rajasthan High Court in case of Narain (Downloaded on 11/11/2023 at 06:04:42 PM) (24 of 38) [CSA-134/1983] Dass Vs. Atma Ram [AIR 1974 Rajasthan 144], the High Court in para No.11 of the judgment held as under:-
"Then, again, the plaintiff has not prayed for declaration of his title to the 'sal' nor has prayed for a decree for exclusive possession. All that has been prayed is, that the construction made by the defendants viz. 'pol' made in place of the window and certain 'patties' may be ordered to be removed and the 'sal' may be restored to its original condition. The defendants, have, undoubtedly, made an endeavour to assert their title to the 'sal' in dispute, but for the purpose of decision of this case it is not necessary to so into that question. In my opinion, the dispute in the present litigation can be disposed of on the short point that the plaintiff has not succeeded in proving his exclusive ownership nor his exclusive possession over the 'sal'. It further appears to me that they brought the suit only after the construction had been completed. In these circumstances, no case has been made out for issue of a mandatory injunction for demolition of the impugned construction. The suit has therefore, been rightly dismissed by the Courts below, and the judgment and decree under appeal do not call for any interference."
29. Another judgment of Madras High Court in case of R.S. Muthuswami Gounder Vs. A. Annamali and Ors.[AIR 1981 Madra 220], has been relied upon, wherein the High Court held as under:-
"The plaintiff, who resides about a mile away from the suit property, would have come to know about the defendant putting up construction on a major portion of the suit property if he had cared to find out and since he has not done so and kept quiet until the first defendant had completed his construction and had sent the notice only about 7 or 8 months later, asserting his right to the suit property, the principles of acquiescence had to be made applicable to the facts of the present case and that the plaintiff had to be given only a decree for compensation in respect of the property, namely, the market value of the suit property in lieu of, the relief of recovery of vacant possession of the property. AIR 1957 Pat 308 and AIR 1960 Pat 474, Dissented from; (1970) 2 Mad LJ 577 Not followed in view of AIR 1965 Mad 318, AIR 1977 Mad 342, Followed."(Downloaded on 11/11/2023 at 06:04:42 PM)
(25 of 38) [CSA-134/1983]
30. In another judgment of Madras High Court in case of Ravuru Punnamma Vs. Lakkaraju Venkata Subba Rao [AIR 1953 Madra 456], relied upon by the appellant, the High Court observed that the person having a right to object, if acquiescence in the construction of structures that encroach upon a partition wall, is not entitled to discretionary remedy for mandatory injunction.
31. The Apex Court in case of Krothapalli Satyanarayana Vs. Koganti Ramaiah & Ors.[AIR 1983 SC 452], has also been relied upon by the appellant, held that the Court is justified in declining to direct the removal of construction, when the plaintiff was guilty of acquiescence and did not seek the prayer for removal of wall for nine years despite his knowledge about the construction of wall.
32. In case of Prabhoo vs Doodh Nath And Ors.[AIR 1978 All 178], has also been relied upon by the appellant, while dealing with an issue in respect of mandatory injunction for demolition of construction made on joint land by a co-owner, without the consent of other co-owner, the High Court of Allahabad observed as in para 11 of the judgment as under:-
"11. One of the tests to determine whether a mandatory injunction should or should not be granted is whether the plaintiffs, who objected to the constructions being made by a co-owner on a joint land, did so at the earliest or, waited till the constructions had been completed. In the first case injunction would normally be issued whereas if the constructions had been allowed to be completed, an injunction would normally be refused, as the basis for refusing injunction would be that be their conduct in not objecting at the earliest stage, the joint co-owners had induced the maker of the constructions to believe (Downloaded on 11/11/2023 at 06:04:42 PM) (26 of 38) [CSA-134/1983] that he could make it, and in doing so spent money and effort."
33. Having enlightened with the enunciation of law referred hereinabove and in view of the factual matrix of the case at hand as available on record, this Court finds that the First Appellate Court has committed jurisdictional error and perversity in issuing the decree for mandatory injunction to demolish the construction made by the defendant on the joint portion of chawk and pol in the haveli in question, without pondering over the act of acquiescence on the part of plaintiff and without considering about the factum that construction had been raised by the defendant long back, from the date of filing the suit and there was no resistance/opposition from the side of plaintiff and his family members.
34. This Court finds support to interfere with the impugned judgment and decree passed by the First Appellate Court, while exercising its jurisdiction under Section 100 CPC from the judgment of Hon'ble Supreme Court delivered in case of Dinesh Kumar Vs. Yusuf Ali [AIR (2010) SC 2679], the relevant portion of the judgment is being reproduced hereunder:-
"There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter."
35. Similar view was reiterated by the Supreme Court, in case of D.R. Rathna Murthy Vs. Ramappa [(2011) 1 SCC 158], wherein it was held in para No.9 as under:-
(Downloaded on 11/11/2023 at 06:04:42 PM)
(27 of 38) [CSA-134/1983] "Undoubtedly, the High Court can interfere with the findings of fact even in the Second Appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided.
There is no absolute bar on the re-appreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances. (Vide Rajappa Hanamantha Ranoji v. Mahadev Channabasappa & Ors., AIR SC 2000 2108; Hafazat Hussain v. Abdul Majeed & Ors., (2001) 7 SCC 189; and Bharatha Matha & Anr. v.
R. Vijaya Renganathan & Ors., JT 2010 (5) SC
534).
36. There is some additional reasons due to which this Court finds it just and proper to set aside the impugned decree passed by the First Appellate Court that it is the case of plaintiff himself that the Haveli in question has not been divided in the family of two brothers i.e. Radha Mohan Lal and Pooran Chand or their successors. Although plaintiff pleaded in the plaint about construction of separate house of parties in the Haveli, but admitted that the other property of chawk, pol and the open land lying in front and back side of Haveli is joint property of parties. Therefore, even if it stands prove that the defendant raised some construction without permission of plaintiff on the joint portion of chawk and pol, than also from that point of view as well, the fact emerges that the partition suit for seeking partition of the joint property has not been filed and there is dispute between parties as to which portion of chawk and pol in Haveli is left for common use and occupation, then it would be harsh and unjust to sustain the decree for demolition of the construction raised by the defendant standing at site at least near about 1960. (Downloaded on 11/11/2023 at 06:04:42 PM)
(28 of 38) [CSA-134/1983]
37. The final rights of parties including their separate ownership and possession in the Haveli in question cannot be adjudicated in the present suit which is only in the nature and scope of injunction and demolition of construction, hence no serious injury or irreparable injury would cause to plaintiff, by setting aside the impugned decree and First Appellate Court committed perversity and jurisdictional error in issuing the impugned decree.
38. It would be apposite to refer about a judgment of Punjab High Court, delivered in case of Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram & Ors.[AIR (1961) Punjab and Haryana 528]. It may be noted that this judgment has been referred and relied upon by the counsel for both parties. In this judgment, the question of law referred to the Division Bench was in following terms:-
"If in spite of protest by one co-owner, another co-owner raises a building on a portion of joint land, not exceeding his own share therein can the aggrieved co-owner obtain a decree for demolition of that building without providing special damage or substantial injury to him?"
While dealing with the such question, the Hon'ble Court observed in paras 19, 20, 21 and 78 as under:-
"19. In so far as a co-owner is entitled to the possession of the entire common property he cannot be dispossessed by maintaining an action for ejectment at the instance of the others, and this is so, even in those cases, where the portion of the common property in his exclusive occupation exceeds his share to which he would be entitled on partition. The remedy of the co- owners where they do not agree among themselves, either as to user or enjoyment in the event of exclusion is to sue for partition and for the settlement of accounts. In the event of an ouster of a co-owner the person ousted can (Downloaded on 11/11/2023 at 06:04:42 PM) (29 of 38) [CSA-134/1983] maintain an action for joint possession though not for ejectment.
20. It is in consonance with rights implicit in joint ownership that one co-owner may be in exclusive possession of a parcel of property in excess of his share which might fall to him on partition, or even, he may be in exclusive possession of the entire joint property, Provided, however, that he concedes a similar right to the other co-owners. This right of exclusive possession exercised by a co-tenant exists so long as others are not ousted. It is only on proof of ouster or of clear denial of the title of the other co-sharers, that the exclusive or excessive possession of joint property ceases to be per tout, that is, on behalf of all, and such possession is no longer considered to be constructive of all co-sharers, for, it is then that the right of common enjoyment of the joint property is put in jeopardy.
21. The law permits a co-sharer to continue to remain, ad infinitum, in exclusive possession of a particular parcel and, subect to well recognised prohibitions, even make constructions on it. The exclusive possession for any length of time, in the absence of ouster, is not tantamount to an exclusive ownership. Exclusive possession of a co-owner is deemed to be with the consent of others. Of course, where by a mutual arrangement, between the co-owners, which is a matter of common occurrence, the co-owners choose to possess a separate parcel of the joint property in severally, such separate possession will not be interfered with at the instance of some co-sharers who may like to depart from the agreed settlement.
78. The weight of the authorities and the principles which have been discussed above, give rise to the following propositions -
(1) A co-Owner has an interest in the whole property and also in every parcel of it.
(2) Possession of the 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. But in (Downloaded on 11/11/2023 at 06:04:42 PM) (30 of 38) [CSA-134/1983] 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, 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 to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition.
(8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition Or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself.
(9) Where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered."
39. In view of afore-referred judgments and discussions, substantial questions of law No.2 and 3 are decided in the manner that the impugned judgment and decree dated 16.04.1983 (19.04.1983) passed by the First Appellate Court is not sustainable in law and deserves to be set aside. (Downloaded on 11/11/2023 at 06:04:42 PM)
(31 of 38) [CSA-134/1983]
No arguments except dealt with hereinabove, for
involvement of any other additional substantial question of law have been made before this Court by either of the parties.
40. Before parting with the judgment, it is also desirable and necessary to deal with the application filed by the appellant under Order 41 Rule 27 CPC. By way of this application, the appellant has sought to brought on record some subsequent events in respect of the suit property.
41. It has been stated in the application that two brothers of original plaintiff namely Satya Narain and Swaroop Narain who are also co-sharer in the common property with the plaintiff have raised construction over the open land laying in back portion of the Haveli and in addition, other construction over the alleged common portion of common chawk and pol in Haveli have also been raised by parties thus, thereby the factual position of the Haveli in question as was existed at the time of institution of the suit has now drastically been changed during the period of more than five decades, after filing of suit in the year 1969.
42. It has been stated that when the construction by the plaintiff and his successors and brothers were started on the open and joint portion of Haveli, legal representatives of appellant instituted an another civil suit titled as Ratan Lal Vs. Laxman Sharma before the Court of Additional Civil Judge (Jr. Division) (East) Jaipur City which was transferred to Additional Civil Judge (Jr. Division) No.5 Jaipur City bearing case No.298/1999. In that civil suit, a Court Commissioner was appointed to prepare the Site Inspection Report and the report of Court Commissioner sought to be placed (Downloaded on 11/11/2023 at 06:04:42 PM) (32 of 38) [CSA-134/1983] on record. In this civil suit before the Trial Court, the plaintiff's brother Shri Swaroop Narain entered into compromise with the legal representatives of appellant-defendant and the certified copy of the compromise application has also been placed on record. A site map of the haveli in question has been enclosed with the application showing that the plaintiff, his legal representatives and plaintiff's brother namely; Satya Narain and Swaroop Narain have raised construction over the common and joint portion of Haveli even as admittedly shown by the plaintiff in the map appended with the plaint and they have inter se enter into the settlement about their portion. Even one of the brother of plaintiff, Shri Swaroop Narain sold some portion to one Shri Ramesh Chand.
43. It has further been stated that since the construction over the common portion was raised in violation to the stay order passed by the High Court in the present second stay application, hence a contempt petition bearing SBCCP No.264/1998 titled as Ratan Lal Vs. Laxman Sharma & Ors, also filed which is pending before the High Court.
44. Application under Order 41 Rule 27 CPC filed by the appellant has not been replied by respondents nor has been opposed during the course of argument nor subsequent events as stated to be occurred in the application have been controverted, hence contents stated in the application and the documents including site map attached with the application are treated as undisputed and admitted facts/documents between the parties.
45. Apex Court, in case of Union of India Vs. K.V. Lakshman & Ors.[ 2016 (13) SC 124], held that the order 41 Rule 27 CPC (Downloaded on 11/11/2023 at 06:04:42 PM) (33 of 38) [CSA-134/1983] is a provision which enables the parties to file additional evidence at the first and second appellate stage. If the party to appeal is able to satisfy the appellate Court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject matter of the lis, the Court should allow the party to file such additional evidence. After all, the Court has to do substantial justice to the parties.
46. In respect of subsequent events occurred after filing of the suit, it is well established principle of law that the Court has power to take note of such subsequent events and also to mould the relief accordingly. In respect of consideration of subsequent events, the celebrated judgment of Hon'ble Apex Court in case of Pasupuleti Venkateswarlu V. Motor & General Traders [(1975)1 SCC 770], may be referred. In this judgment, the Apex Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decreetal remedy, (ii) rules of (Downloaded on 11/11/2023 at 06:04:42 PM) (34 of 38) [CSA-134/1983] procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed.
47. The aforesaid judgment has been followed by the Apex Court in catena of subsequent judgments and recently in case of Hukumchandra(D) Thru Lrs. vs Nemi Chand Jain [(2019) 13 SC 363], in the dispute, in respect of rent control and eviction matters and the Supreme Court observed as under:-
"The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtained at the commencement of the litigation. Whenever, there is subsequent events of fact or law, which have a material barring on the rights of the parties to relief or on the aspects of moulding appropriate relief to the parties, the court is not precluded from taking cognizance of the subsequent changes of fact and law to mould the relief (vide Ramesh Kumar v. Kesho Ram (1992) Supp 2 SCC 623)"
48. Subsequent events alleged to be occurred in respect of suit property and thereby the new construction which has come up on the suit property has been indicated in the site map produced by the appellants as Annexure-1. This site map showing the present status and position of Haveli in question, which is altogether different than the site maps (Ex.1 & Ex.A1) produced by parties at the time of filing present suit, being relevant and undisputed, is taken on record. Other two documents are certified copies of the report of Court Commissioner and the compromise application, too pertains to subsequent events on filing another civil suit between (Downloaded on 11/11/2023 at 06:04:42 PM) (35 of 38) [CSA-134/1983] the parties to the present appeal in respect of common portion of the Haveli, before the Court of Additional Civil Judge (Jr. Division) Jaipur and such facts and documents are also undisputed as well as being certified copy of the record of judicial court, therefore, are taken on record.
49. To allow the application under Order 41 Rule 27 CPC at the second appellate stage, for reasons stated hereinabove, this Court finds support from the judgment of Apex Court in case of Lachhman Singh (Deceased) Through LR's vs Hazara Singh (Deceased) Through LR's[(2008) 5 SCC 444], wherein the Apex Court held that the jurisdiction of appellate Court is to exercise not only when clause (a) or Clause (aa) of Su-rule (1) of Rule 27 of Order 41 of the Code is attracted but also when such document is required by the appellate Court itself to pronounce judgment or for any other substantial cause.
50. In another case of Wadi Vs. Amilal [2015 (1) SCC 677], while dealing the scope of order 41 Rule 27 (1) (b) CPC, the Apex Court held as under:-
"5. Now it is clear that Rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in sub- rule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a case. The exceptions to that principle are enumerated thereunder in clauses (a), (aa) and (b). We are concerned here with clause (b) which is an enabling provision. It says that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of the appellate court bearing in mind that the interest of justice is paramount. If (Downloaded on 11/11/2023 at 06:04:42 PM) (36 of 38) [CSA-134/1983] it feels that pronouncing a d judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, clause (b) enables it to adopt that course. Invocation of clause (b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellant to resort to it when on a consideration of the material or record it feels that admission of additional evidence is e necessary to pronounce a satisfactory judgment in the case."
51. Since subsequent events and documents are undisputed fact, therefore such admitted facts may be taken into consideration and it is not required to remand the matter. Respondents have not chosen to produce any rebuttal evidence nor asked for to give any opportunity for same. In the opinion of this Court when the present litigation has already been pending since more than five decades, then it would not be in the interest of parties to remand the case to consider the subsequent events by the First Appellate Court, when this Court itself has jurisdiction to consider the effect of the undisputed subsequent events, on the judgment and decree impugned in the present appeal.
52. With aforesaid findings and observations, the application filed by the appellant under Order 41 Rule 27 CPC to take subsequent events on record is allowed and subsequent events and documents are taken on record.
53. By the subsequent events noticed hereinabove, it appears that the position and possession of the parties in the Haveli in question has drastically been changed. After filing of the present suit in the year 1969, parties have raised additional constructions other than the disputed construction on the joint and common (Downloaded on 11/11/2023 at 06:04:42 PM) (37 of 38) [CSA-134/1983] portion of chawk, pol and open land situated in front and back of the Haveli in question. The construction on the other portion of open joint land of Haveli has been alleged to be made by the plaintiff's brother. A comparative analysis of the three site maps of the Haveli in question, first produced by the plaintiff with the plaint on 10.03.1969 (Ex.1), second produced by by the defendant with the written statement on 27.05.1969 (Ex.A1) and third produced by appellants-defendant during course of second appeal alongwith application under Order 41 Rule 27 CPC dated 06.07.2006 (Ann.1), makes it clear that apart from the original defendant, other co-sharers of the Haveli have also raised constructions on the joint portion of property of Haveli in question, therefore, this is an additional reason that due to such subsequent events, it would be highly improper and unjust to sustain the impugned decree. When the defendant is having the disputed construction and possession over the joint portion of Haveli in question since prior to 1969 when present suit was filed, it would be injustice to allow demolition of his construction, more so when the plaintiff and his brothers have raised other new constructions on the other joint portion of the Haveli in question. Thus, it is not lawful to sustain the impugned decree.
54. However, while setting aside the impugned decree, it is hereby observed that the construction made by the defendant on the alleged joint portion of chawk, pol and open land in the Haveli in question would remain subject to final adjudication of rights of parties in any other lis or future lis relating to the partition of the Haveli in question, among the successors/legal representatives of (Downloaded on 11/11/2023 at 06:04:42 PM) (38 of 38) [CSA-134/1983] late Shri Pooran Chand and late Shri Radha Mohan Lal including legal representatives of the plaintiff and defendant and other surviving co-sharers of the Haveli in question.
55. Thus, as a final result, instant second appeal succeeds and the impugned judgment and decree dated 16.04.1983 (19.04.1983) passed by the First Appellate Court is hereby quashed and set aside. The civil suit for injunction and demolition of construction on the joint portion of Haveli in question filed by the plaintiff-Shri Narain is hereby dismissed. Parties shall bear the litigation costs to their own. Record of the courts below be sent back forthwith.
(SUDESH BANSAL),J TN/ (Downloaded on 11/11/2023 at 06:04:42 PM) Powered by TCPDF (www.tcpdf.org)