Kaushalya Devi & Others vs Surender Kumar & Others on 12 January, 2024

[Cites 7, Cited by 0]

Himachal Pradesh High Court

Kaushalya Devi & Others vs Surender Kumar & Others on 12 January, 2024

Bench: M.S. Ramachandra Rao

1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.499 of 2018 Reserved on:08.12.2023 Pronounced on:12.01.2024 .

Kaushalya Devi & Others ......Appellants Versus Surender Kumar & Others ...Respondents _________________________________________________________ Coram:

of Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.

Whether approved for reporting?

For the appellantsrt : Mr. Praveen Chauhan, Advocate.

For the respondents : Mr. Tara Singh Chauhan, Advocate.

M.S. Ramachandra Rao, Chief Justice.

This Regular Second Appeal is preferred challenging the judgment dt. 31.07.2018 of the Additional District Judge, Ghumarwin, District Bilaspur in Civil Appeal no.20-13 of 2018, confirming the judgment and decree dt. 30.12.2017 of the Civil Judge (Sr. Division), Court No.1, Ghumarwin, District Bilaspur, H.P., in Civil Suit no.120/01 of 2001.

2) The appellants herein are the legal heirs of deceased sole plaintiff by name Prema. The respondents herein are the legal heirs of deceased defendant no.1 Babu Ram ( for short "defendant").

::: Downloaded on - 12/01/2024 20:35:57 :::CIS 2

There were also proforma defendants No.2 to 12 with whom we are not concerned.

3) The parties will henceforth be referred to as per their array in the .

suit.

The plaint

4) The suit was filed by the deceased plaintiff contending that he, the deceased defendant and other proforma defendants are joint of owners in possession of suit land measuring 0-13 bighas, comprised in Khasra no.225, Khata/Khatauni no.134, situate in rt Village Berthin, Pargana Sunhani, Tehsil Jhandutta, District Bilaspur, Himachal Pradesh. In support of the said plea, copy of the Jamabandi for the year 1998-99 was filed, which was marked as Ex.P-1.

5) The plaintiff contended that the defendant had no right to occupy valuable and specific portion of the suit land which is situated by the side of the road till the same is not finally partitioned and he should be restrained from interfering over the suit land in any manner.

6) According to the plaintiff, on 10.04.2001, defendant deployed labourers alongwith his family members and started digging the suit land, and when the plaintiff objected to that activity, the ::: Downloaded on - 12/01/2024 20:35:57 :::CIS 3 defendant threatened to dispossess him from the suit land and occupy the valuable and specific portion of the suit land.

7) It is contended that the plaintiff had filed an application under .

Or.39 Rules 1 & 2 C.P.C. alongwith the main suit, and that on 16.04.2001, the trial Court passed an order of status quo order qua construction to be maintained over the suit land while issuing notice to the defendant.

8) After summons were served on the defendant, on 01.06.2001, the trial Court in the said application, recorded that both parties rt agreed to maintain status quo as to possession and not to raise any construction over the suit land. It disposed of the application for temporary injunction, while directing that no construction should be raised or trees should be cut, and nature of the land should not be changed in any manner in the suit land till the disposal of the suit.

9) Plaintiff contended that in spite of the said order, the deceased defendant occupied the entire valuable and specific portion of the suit land, which is by the side of the road known as "Shah-Talai-

Bilaspur" via Berthin, comprised in Khasra no.225, Khatauni no.67 min/134, land measuring 13 biswas, by constructing 10 shops over the land measuring 2 biswas, comprised in Khasra ::: Downloaded on - 12/01/2024 20:35:57 :::CIS 4 no.225/1, Khata/Khatauni no.67 min/134, which is part of Khasra no.225, total land measuring 13 bishwas in Village Berthin.

10) The plaintiff contended that he himself and proforma defendants .

no.2 to 12 were entitled for joint possession by demolishing the shops constructed by the defendant exceeding his 1/4th share over 2 biswas of land comprised in the said Khasra, as the deceased defendant had deprived the plaintiff and proforma defendants of no.2 to 12 of their valuable rights.

11) He therefore prayed for relief of permanent injunction and rt possession or in the alternative demolition of the structures erected by the defendant over the suit land during the pendency of the suit.

12) He also prayed for a decree of permanent injunction restraining the defendant from interfering by changing nature of the land by digging any part, cutting the trees and for making any construction on any part of the suit land; and also sought a decree for joint possession in favour of the plaintiff and proforma defendants no.2 to 12 by demolishing all the shops constructed by defendant no.1 in excess of his 1/4th share by occupying 2 biswas of land in the said Khasra number.

::: Downloaded on - 12/01/2024 20:35:57 :::CIS 5

13) He further prayed for separation of the shares of plaintiff and proforma defendants no.2 to 12 and for vacant possession in the partition of their respective shares by demolishing the said shops.

Written statement of the defendant Babu Ram

14) The defendant contended that the suit land, though recorded in joint ownership of parties, was in fact in his exclusive possession and the same was also recorded in the revenue papers. So, the of plaintiff had no locus-standi to file the suit.

15) It is stated that the predecessors-in-interest of the parties to the rt suit, had divided their land in a family partition long ago, and the suit land had fallen to the share of the father of the defendant.

16) According to him, at the time of partition, there was neither road nor shops at Berthin, and because of the private partition, the suit land is recorded in the exclusive possession of the defendant and the plaintiff had no claim over it.

17) He also stated that the plaintiff had only two shares recorded as owner out of total 40 shares in the suit land of 13 biswas, which means that his share is about 1/2 biswa, i.e. a very negligible part of the suit land.

18) According to him, the intention of the plaintiff is not bonafide.

::: Downloaded on - 12/01/2024 20:35:57 :::CIS 6

19) He also contended that he had made construction over the suit land prior to the filing of the suit and no construction had been made by him on or after 10.04.2001.

20) He denied making any construction in the suit land during the pendency of the suit.

Issues

21) The trial Court framed the following issues:

of "1. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for? OPP.

1-A. Whether during the pendency of the suit and despite injunction rt order from the court, defendant no.1 had occupied the entire valuable and specific portion of the suit land, abutting the road, by constructing ten shops over the land measuring 2 biswas, comprised in khasra no.225/1, khata/khatoni no.67min/134, which is a part of the suit land? If so, its effect? OPP.

1-B. If the aforesaid issue no.1 is answered in the affirmative, whether the plaintiffs are entitled for relief of joint possession by demolition of the shops, constructed by the defendants, as claimed? OPP.

2. Whether the suit of plaintiffs is not maintainable? OPD.

3. Whether the plaintiffs have no cause of action to file the present suit? OPD.

4. Whether the suit is barred by time? OPD.

5. Relief."

22) Before the trial Court, the plaintiff examined PWs no.1 to 4, while the defendant examined DWs 1 to 8.

::: Downloaded on - 12/01/2024 20:35:57 :::CIS 7

23) The plaintiff marked Ex.PW-1/A to Ex.PW-3/A. The defendant marked Ex.DX to Ex.DY.

Judgment of the trial Court after remand.

24) Initially the suit was decided on 20.12.2012.

25) This was challenged in Civil Appeal no.09/13 of 2013 by the legal heirs of the deceased plaintiff in the lower Appellate Court.

26) The lower Appellate Court through a judgment dt. 29.11.2016, of remanded the case after framing issues no.1-A & 1-B and directed the trial Court to decide the suit afresh after giving opportunity to rt the parties. It however observed that earlier findings on other issues shall not be disturbed and finding shall be confined only to newly framed issues.

The judgment of the trial court after remand

27) The trial Court, after remand, noted what findings had been given by it before the remand by the appellate court.

28) It noted that on issue no.1 its predecessor had held that the plaintiffs had been able to prove their plea upto the hilt by leading cogent, convincing and satisfactory evidence; that the defendants are threatening to change the nature of the suit land by encroaching and raising construction on valuable and specific portion of the suit land; and therefore, they are liable to be ::: Downloaded on - 12/01/2024 20:35:57 :::CIS 8 restrained. It had held that the plaintiffs had not been able to prove their alternative plea of decree for possession.

29) The trial Court also recorded that in the previous round, issue .

no.2 was answered holding that the suit of the plaintiffs is maintainable, and on issue no.3 finding was given that the plaintiffs had cause of action to file the suit.

30) It also noted that in the earlier round, issue no.4 was held against of the defendants.

31) The trial Court noted that in the earlier round the suit was decreed rt with costs and prohibitory injunction was granted restraining the defendants from changing the nature of the suit land by raising construction thereon.

32) It then considered issues no.1-A & 1-B, which are extracted as under:-

"1-A. Whether during the pendency of the suit and despite injunction order from the court, defendant no.1 had occupied the entire valuable and specific portion of the suit land, abutting the road, by constructing ten shops over the land measuring 2 biswas, comprised in khasra no.225/1, khata/khatoni no.67min/134, which is a part of the suit land? If so, its effect? OPP. 1-B. If the aforesaid issue no.1 is answered in the affirmative, whether the plaintiffs are entitled for relief of joint possession by demolition of the shops, constructed by the defendants, as claimed? OPP."

::: Downloaded on - 12/01/2024 20:35:57 :::CIS 9

33) The trial Court recorded that, after remand, the plaintiffs had examined two revenue officials as PW-3 & PW-4, who have proved a Tatima Ex.PW-3/A; but their evidence is not of any help .

as they did not produce any demarcation report on the basis of which the said Tatima must have been prepared in order to establish nature and extent of alleged encroachment by way of construction upon the suit land or its part.

34) It also held that depositions of the said witnesses are not helpful to establish as to the time when construction had been raised upon rt the suit land by the defendant.

35) It also held that the plaintiffs did not adduce any clear, cogent and sufficient evidence to substantiate that any alleged construction was carried out by the deceased defendant upon the suit land during pendency of the suit despite injunction order from the Court.

36) It observed that no other co-sharer and any other person from the locality of the suit land had been examined by the deceased plaintiff to prove the allegation made by her that construction was made by the deceased defendant during the pendency of the suit and after the injunction order.

37) It held that the deceased plaintiff had not pursued the remedy of partition of the suit land and he did not initiate proceedings under ::: Downloaded on - 12/01/2024 20:35:57 :::CIS 10 Or.39 Rule 2-A CPC against the deceased defendant for the alleged violation of the temporary injunction order by the deceased defendant.

38) It, therefore, held that the plaintiff was not entitled for relief of joint possession by demolition of shops constructed by the defendant.

39) It, therefore, maintained the decree passed previously restraining of the defendant from changing the nature of the land by way of raising construction on valuable and specific portion of the suit rt land till the suit land is partitioned by "metes and bonds" and dismissed the rest of the claim of the plaintiff.

Judgment of Appellate Court

40) Challenging the said judgment, the plaintiff's legal representatives filed Civil Appeal no.20-13 of 2018, while the defendant's legal representatives filed Civil Appeal no.39-13 of 2018. ( Both plaintiff and the defendant had died during pendency of the suit)

41) By the judgment and decree dt. 31.07.2018, both appeals were dismissed and the trial Court's judgment and decree was upheld.

42) The lower Appellate Court held that from the pleadings of the parties and the evidence led on record by both the parties, the undisputed position was that the suit land was joint between the ::: Downloaded on - 12/01/2024 20:35:57 :::CIS 11 parties and that each-sharer of joint land has every right over each inch of the land and possession of one co-sharer over the joint land is possession of all by referring to the judgment of this .

Court in Prabhu Nath vs. Sushma1.

43) It held that both plaintiff and defendant had equal rights over the suit land till the same was partitioned in accordance with law and till it is so partitioned, a decree for possession in favour of one co-

of sharer cannot be granted against the other, especially by demolition of construction raised by the latter.

44) rt It held that once a co-sharer comes in possession of a portion of the joint land by way of raising construction, or otherwise, the only remedy with the other co-sharers is to seek partition of the land in appropriate proceedings, in which the extent of the shares of the parties and the identity of land falling to their respective shares, would be determined.

45) It observed that before such proceedings are undertaken, it would not be possible to ascertain whether or not a party has exceeded its share on the spot, nor can it be determined in a suit for permanent injunction whether one of the parties is in possession of more valuable portion of the suit land.

2014(2) Shimla Law Cases 1003 ::: Downloaded on - 12/01/2024 20:35:57 :::CIS 12

46) It held that in the absence of partition, it cannot be ascertained as to which portion of the construction raised by a co-sharer is liable to be demolished, on the ground of its existing on the land, falling .

to the share of another co-sharer.

47) Having noted that the plaintiffs admitted that they did not file any proceedings for partition of the land, it held that in addition to the suit land there was other land also, which was in joint ownership of and possession of the parties, and the whole of the joint land would be required to be brought in a common hotch-potch at the rt time of partition, and it would be decided with reference to the entire joint land as to whether any of the parties is in possession of the land in excess of its share or of more valuable portion of the joint land.

48) It confirmed the finding of the trial Court that no evidence was led by the plaintiffs to prove their allegation that the deceased defendant had raised construction of 10 shops over the suit land during the pendency of the suit despite an order of temporary injunction having been passed by the trial Court though they had ample opportunity to do so, after the matter was remitted back to the trial Court.

49) It referred to the evidence of PWs 3 & 4 and the Tatima Ex.PW-3/A on 30.06.2001 and stated that a perusal of it shows ::: Downloaded on - 12/01/2024 20:35:57 :::CIS 13 that it only mentions an under construction house over Khasra no.225/1, without giving the details of such construction, and no inference from it can be drawn that construction was raised by the .

defendants after the ad-interim injunction was granted by the trial Court on 16.04.2001.

50) It observed that the defendant had examined six witnesses, including DW-5, a mason who was doing the job of construction of of shops, and that he had stated that construction was completed in the month of March, 2001 and that the said evidence was also rt corroborated by DW-6, who had laid the shuttering on the slab over the shops.

51) It also referred to the evidence of DW-8, the Process Server, who had given evidence for the defendants that when he had gone to the spot to serve summons upon the original deceased defendant Babu Ram on 18.04.2001, lintel of the shops had already been laid.

52) It also held that the plaintiff had not taken proceedings under Or.39 Rule 2-A CPC against the defendants though the case was pending in the trial Court for more than 11 years, that no photographs have been tendered in evidence to show the position of the construction before and after the filing of the suit in order to support an adverse inference against the defendants.

::: Downloaded on - 12/01/2024 20:35:57 :::CIS 14

53) It observed that it is open to the plaintiffs to initiate appropriate proceedings for partition of the joint land, wherein, the respective rights of the parties over the said land shall be crystallized and .

any construction made over the joint land by any of the parties, would abide by the partition which would be finally effected between the parties.

54) It rejected the appeal of the defendants on the ground that they of had not challenged the judgment and decree passed on 20.12.2012 before the Appellate Court, and only the plaintiffs have rt challenged it by filing Civil Appeal no.9/13 of 2013, and the matter had been remitted back to the trial Court with a direction not to disturb the findings rendered in the judgment and decree of 20.12.2012, which had attained finality. Thus, both appeals were dismissed.

55) Challenging the same, the present RSA is filed.

RSA

56) This Second appeal was admitted on 19.08.2019 to consider the following substantial questions of law:-

"1. Whether the findings returned by the learned Trial Court, as upheld by the learned Appellate Court while deciding Issue No.1-A, are perverse findings, as the same are a result of complete mis-reading and mis-appreciation of the evidence on record?

::: Downloaded on - 12/01/2024 20:35:57 :::CIS 15

2. Whether the findings returned by the learned Trial Court that defendants have not carried out any construction over the suit land after passing of an interim injunction order, as upheld by the learned Appellate Court, though being .

findings of fact, are again perverse findings being contrary to the evidence on record and a result of mis-reading and mis- appreciation of evidence on record?"

57) Thus, the main ground of attack of the judgment of the lower Court, is perversity of the findings.

of Contentions.

58) Counsel for the appellants, who are the legal representatives of rt the deceased plaintiff, contended that the evidence on record clearly pointed out to the construction having been made by the deceased defendant after the interim order of status quo was passed on 16.04.2001, that this material was not noticed, and this non-consideration of the material evidence has vitiated the findings of the trial Court as well as the lower Appellate Court rendering their findings perverse.

59) Counsel for the legal heirs of the defendant/respondents supported the judgment of both the courts below.

60) There is no dispute that on 16.04.2001, in the application filed under Or.39 Rules 1 & 2 CPC filed by the original deceased plaintiff, a status quo order had been granted, which order was ::: Downloaded on - 12/01/2024 20:35:57 :::CIS 16 subsequently made absolute, and an undertaking was given by both parties on 01.06.2001 that they would not raise any construction or cut trees or change the nature of the land in any .

manner, whatsoever.

61) I have perused Tatima Ex.PW-3/A, which bears the date 02.07.2001 and contains the signature of PW-3, Patwari (Om Parkash).

62) The said Tatima indicates that there is an under construction structure on the subject land in two biswas in Khasra no.225/1 rt and that it was prepared on the site by PW-3 (Patwari) and PW-4 (Kanungo).

63) PW-3, the Patwari, in his evidence stated that he prepared the Tatima Ex.PW.3/A dt. 30.06.2001 and it was verified by the Kanungo on 30.06.2001 itself and the same was issued to the party on 02.07.2001. He denied the suggestion that the house at the spot was constructed prior to 2001.

64) PW-4, the Kanungo, also stated that he verified the Tatima Ex.PW-3/A on 30.06.2001 on the spot, and his signature thereon is at Ex.PW-4/A. He also stated that it was prepared as per his demarcation. A suggestion was given to him specifically to which he stated that new construction was going on at the spot as per the said Tatima.

::: Downloaded on - 12/01/2024 20:35:57 :::CIS 17

65) More importantly, DW-5, the mason engaged by the deceased defendant, stated in his evidence that though he did not remember in which year he did the work on the deceased defendant's house, .

the construction work was started after the rainy season, after cutting of the maize crop and it went on for three to four months.

According to him, the lintel slab was laid during the rainy season.

He also stated that the lintel slab was completed in the month of of July, 2001.

66) From the above evidence, it is apparent that though the status quo rt order was issued on 16.04.2001 by the trial Court in the application under Or.39 Rules 1 & 2 CPC, the construction work was started after the rainy season ( which would normally be in the month of June, 2001) and that the lintel was laid in July, 2001, i.e. during the subsistence of the status quo order passed by the trial Court.

67) In the light of this material available before the trial Court as well as the lower Appellate Court, the findings recorded by them that there is no evidence of construction having been made by the defendants after the status quo order was passed on 16.04.2001, has to be held to be perverse.

68) The trial Court's finding that the evidence of PW-3 & PW-4, would not establish at what point of time such construction had ::: Downloaded on - 12/01/2024 20:35:57 :::CIS 18 been raised on the suit land, and that it was raised by the defendants is perverse in the light of evidence of DW-5 examined by the defendants, who categorically stated that the work started .

in the rainy season and the lintel slab was raised in July, 2001, i.e., two & a half months after the interim order of status quo was granted by the trial Court.

69) The said evidence is backed-up by the evidence of PW-3 & of PW-4, who admittedly visited the spot and prepared the Tatima Ex.PW-3/A, showing that construction was in progress at that rt time. PW-3 is the Patwari and PW-4 is the Kanungo. No motive is attributed to the said witnesses by the defendants for giving false evidence in support of the plaintiff.

70) The process server DW-8, and DW-6, the person who raised lentel, had not been truthful and had been won over by the defendants when they spoke contrary to the evidence of PW3, PW4 and DW5 and the Tatima PW3/A dt.30.6.2001.

71) The finding of the Appellate Court that the plaintiffs did not lead cogent evidence to prove the allegation against the defendants making construction after the status quo order, is also incorrect and perverse.

72) In fact, the lower Appellate Court notes that in the Tatima Ex.PW-3/A, it is shown that there is an under construction house ::: Downloaded on - 12/01/2024 20:35:57 :::CIS 19 over Khasra no.225/1, which Tatima was prepared on 30.062001.

Merely because details of such construction were not mentioned, it cannot ignore the fact that the construction was in progress .

73) The lower Appellate Court wrongly noted that DW-5 stated that he worked as a mason on the construction of the shops and that the construction was completed in March, 2001, which is contradicted by the said witness in cross-examination, where he of admitted that the construction work started after the rainy season ( which is normally after month of April) and the lintel was raised rt in July, 2001.

74) There is, thus, perversity and a manifest misreading of evidence on the aspect as to whether the deceased defendant had violated the status quo order passed by the trial Court on 16.04.2001, and the findings of the trial Court as well as the lower Appellate Court on the said aspect cannot be sustained.

75) The fact that the deceased plaintiff did not move an application under Or.39 Rule 2-A CPC against the deceased defendant, cannot be put against the plaintiff and relief denied to the plaintiff, after the plaintiff had amended the plaint seeking such reliefs specifically, and had secured a remand from the lower Appellate Court for considering the said issues specifically.

::: Downloaded on - 12/01/2024 20:35:57 :::CIS 20

76) The stand of the deceased defendant that there was a prior partition and that he was in exclusive possession of the entire suit land, has not been established by him. Neither the trial court nor .

the lower appellate court accepted this plea raised by him.

77) Therefore, the land has to be presumed to be joint for all intents and purposes, irrespective of how much share the deceased plaintiff had and how much share the deceased defendant had.

78) The legal position that each co-sharer of joint land had every right over each inch of the land though accepted by the lower rt Appellate Court, it failed to protect the rights of the plaintiff by a gross misreading of evidence and asking the plaintiff to seek partition, overlooking the fact that the defendant cannot exclusively appropriate to himself any portion of land by blatantly violating the status quo order passed by the trial Court.

79) In Delhi Development Authority vs. Skipper Construction Co.

(P) Ltd. & Another2, the Supreme Court held categorically that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt, and that merely undergoing punishment for contempt would not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders.

(1996) 4 SCC 622 ::: Downloaded on - 12/01/2024 20:35:57 :::CIS 21

80) It held in paras 17 to 21 as under:-

"17. The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well-settled. In Mohd. Idris .

v. R Babuji [1985 (1) S.C.R.598], this Court held clearly that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its Orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of of one month's imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for rt contempt of court. The argument was rejected holding that "the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking)".

18. The above principle has been applied even in the case of violation of orders of injunction issued by Civil Courts. In Clarke v. Chadburn [1985 (1) All.E.R. 211], Sir Robert Megarry V-C observed:

"I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Willful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they ere liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach in law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the ::: Downloaded on - 12/01/2024 20:35:57 :::CIS 22 law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought nat to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."

19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Limited v. S. Suppiah & Ors. [A.I.R.1975 Madras 270] and Sujit Pal v. Prabir Kumar Sun [A.I.R.1986 Calcutta 220]. In Century Flour Mill Limited, it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the of wrong right and not allow the perpetuation of the wrong-doing. The inherent power of the Court, it was held, is not only available in such a case, but it is bound to be exercise it to undo the wrong in the interest of rt justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognize that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.

20. In Suraj Pal, a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the Court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law.

21. There is no doubt that this salutory rule has to be applied and given effect to by this Court, if necessary, by over-ruling any procedural or other- technical objections. Article 129- is a constitutional power and when exercised in tandem with Article 142, all such objections should give away. The Court must ensure full justice between the parties before it."

::: Downloaded on - 12/01/2024 20:35:57 :::CIS 23

81) This principle was reiterated in All Bengal Excise Licensees Association vs. Raghabendra Singh & Others3.

82) Accordingly, this Regular Second Appeal is allowed and the shops erected by the defendant-respondent in the subject land in violation of the status quo order granted by the trial Court pending suit on 16.04.2001, are directed to be demolished within of four weeks. The respondents shall also pay costs to the appellants of Rs.10,000/- within four weeks.

83) rt Pending miscellaneous application(s), if any, shall also stand disposed of.



                                                   (M.S. Ramachandra Rao)
    January 12, 2024                                   Chief Justice


        (Yashwant)







    3
                (2007) 11 SCC 374




                                                       ::: Downloaded on - 12/01/2024 20:35:57 :::CIS

Unlock Advanced Research with PRISMAI

Himachal Pradesh High Court