Allahabad High Court
Aditya Narayan And Another vs Hari Narayan And 9 Others on 14 January, 2020
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 15.07.2019 Delivered on 14.01.2020 Court No. - 34 Case :- FIRST APPEAL No. - 320 of 2015 Appellant :- Aditya Narayan And Another Respondent :- Hari Narayan And 9 Others Counsel for Appellant :- Arvind Srivastava,Rajesh Kumar Tiwari Counsel for Respondent :- Shri Kant,Ashish Kaushik,Awadhesh Kumar Sharma,Ravi Chandra Srivastava,Sharda Vishwakarma Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. This is plaintiffs' appeal filed under Section 96 of Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") arising from judgment dated 27.02.2015 and decree dated 10.03.2015 passed by Sri Niranjan Kumar, Additional Civil Judge (Senior Division)-I, Bhadohi, Gyanpur (hereinafter referred to as "Court Below/Trial Court") whereby it has dismissed plaintiffs' Original Suit No.8 of 2004 and declined to grant permanent injunction prayed by plaintiffs-appellants (hereinafter referred to as "plaintiffs") against defendants-respondents (hereinafter referred to as "respondents").
2. Facts giving rise to present appeal, in brief, are as under :
3. Original Suit No.8 of 2004 was instituted by two plaintiffs i.e. Aditya Narayan son of Suraj Prasad and Smt. Durga Rani wife of Aditya Narayan impleading six defendants namely Hari Narayan, his wife Smt. Asha Rani, Ram Narain, (who died during pendency of suit and substituted by his legal heirs Prem Prakash Dubey, Bindu Madhav Dubey, Mst. Prabhawati Devi, Smt. Vijay Laxmi alias Bittul Devi); Anil Kumar, Avanish Kumar, both sons of Late Omkar Nath and Smt. Baijanti Devi, wife of Late Omkar Nath, (impleading them as defendants 1 to 6). Since defendant 3 Ram Narain died during pendency of suit, his legal heirs, named above, were impleaded as defendants no.3/1 to 3/4 respectively.
4. Plaintiffs prayed for grant of decree of permanent injunction restraining defendants from interfering in the part of disputed property namely Arazi No.179-Ka situate at Gopiganj Town Bahar Taluka Kodh, Tehsil Gyanpur, Pargana Bhadohi, District Sant Ravidas Nagar, shown in the map given at the bottom of plaint and marked as 'Ja', 'Kha', 'Cha', 'Chha' and also trees, permanent well, Madha and other constructions existing therein and also not to damage the same or interfere in any manner.
5. Family tree has been given in the plaint. Since all the parties had common succession and ancestors, therefore, family tree was given in the plaint as under :
Gaya Prasad _______________________|___________________ | | Ram Krishna Ganga Ram | Suraj Kali (wife) Kamta Prasad | _________|_________ | | | | Ram Narain Omkar Nath | __________|________________ | | | | | Avneesh Kumar Anil Kumar Baijanti Devi | | ____________________________________________ | | | | Keshri Narain Man Narain Hari Narain Aditya Narain ___|_________ | | Vijay Narain Ajay Narain _____|______ | | Pankaj Umang
6. Disputed property shown in the map, was given at the bottom of plaint as under :
t [k
d
nl iDdk dejk izkfroknh 1 o 2 vke ydM+h dh nqdku
fgLlk izfroknhx.k 1 o 2
vke eMgk
rkykCk vke iDdk dwWavk
uhe
> N Pk
³ fgLlk izkfroknhx.k ua0 3 rk 5
?k x
7. The plaint case set up by plaintiffs is that old number of Land No.179 is 309 and new number is divided into two i.e. 179-Ka and 179-Kha. The area of Land No.179-Ka is 0.445 Hec. i.e. 1 bigha 16 biswa. Land bearing no.179-Ka is in the co-ownership of plaintiffs and defendants 1 to 6. About 25 years back, there was a family settlement/partition of disputed land between plaintiffs and defendants. Prior to said family settlement/partition, plaintiffs and defendants both were having joint possession over Arazi No.309 newly numbered as 179Ka. As per family settlement/partition, part of disputed land shown in the map as Ja, Chha, Jha, Ka was assigned to defendants 1 and 2 while part shown as Ja, Kha, Cha Chha came in possession of plaintiffs and part of disputed land shown as Jha, Cha, Ga, Gha, Anga was assigned to defendants 3 to 6. The other co-sharers were given land in lieu of their shares at other places, therefore, they were not impleaded in aforesaid suit. The part of property came into possession of plaintiffs is about 12 biswa wherein existed one permanent well, Madha, four trees of mango, two trees of Neem and a shop, which was rented out. The plaintiffs are in possession of property assigned to them for the last 25 years with due knowledge to defendants. Plaintiffs have been using the said land and other existing constructions and defendants have no right, claim or interest therein. The entire property is an ancestral property of plaintiffs and defendants and disputed property came to the share of ancestors of plaintiffs and defendants by means of a family settlement/partition dated 23.8.1960. Plaintiff 2 and defendant 2 got share in ancestral property pursuant to Will dated 19.7.1973 executed by another co-sharer and family member namely Suraj Kali.
8. As per family settlement/partition arrived at between plaintiffs and defendants, all the parties are enjoying their share assigned to their possession and defendants 1 and 2 have got constructed 10 rooms in the part of property which came into their share and possession. Defendants 1 and 2 are rich, resourceful musclemen and defendant 1 is a habitual litigant. On 04.01.2004, defendants 1 and 2 came to disputed site and threatened plaintiffs and their legal heirs to vacate disputed land, which was in possession of plaintiffs, in one or two days else they shall be evicted. They also threatened and informed that defendants 1 and 2 shall sell disputed land and plaintiffs have no claim over disputed land henceon. Plaintiffs tried to pacify the things and also persuaded defendants through other family friends but defendants did not pay any heed. They are instead adamant to evict plaintiffs and sell disputed property. Defendants have no claim, right or possession over disputed property, shown in the map by letters Ja, Kha, Cha, Chha and it is also not in their possession. Defendants 3 to 6 are co-owners, who have also settled their share by metes and bound by means of family settlement and no relief is claimed against them but only since they are in possession of ancestral property, which have been settled between the parties, they have been impleaded. Defendant 1 is elder brother of plaintiff 1 and was managing entire family/ ancestral property prior to 25 years when family settlement arrived at between the parties. If defendants 1 and 2 have got prepared any document by playing fraud or misrepresentation in respect of disputed property, the same is not in the knowledge of plaintiffs and the same is not binding upon them.
9. It is in these facts and circumstances, suit in question was instituted vide plaint dated 09.01.2004 in the Court of Civil Judge (Senior Division) Bhadohi at Gyanpur, District Sant Ravidas Nagar (Bhadohi).
10. Defendants 1 and 2 contested the matter by filing combined written statement dated 18.3.2004 wherein broadly the averments made in plaint were denied except that 10 rooms having got constructed by defendant 1. Defendants 1 and 2 also raised additional pleas stating that suit has been instituted with false and incorrect pleadings and facts, and plaintiffs have no cause of action to institute the same and it is barred by Section 49 of Consolidation of Holdings Act; plaintiffs have no claim, interest or right over disputed property or part of disputed property; there are three temples and a pond in plot no.179 Kha, which was renovated by defendant 1 Hari Narayan; disputed property is Bhumidhari and plaintiffs are not recorded as co-owners in Revenue records hence have no right or claim over the same; Suit is barred by Section 331 of U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as "Act, 1950"); plaintiffs have always recognized defendants as owner recorded in Revenue records and therefore suit is barred by estoppel and acquiescence; suit is barred by limitation; pleadings are self contradictory; suit is barred by Section 34 of Specific Relief Act, 1963; valuation is not correct and therefore, insufficient Court fees has been paid and in respect of disputed property, another suit no.461 of 1980 (Mohan Lal Vs. Hari Narayan Dubey) is pending in the Court of IIIrd Additional Civil Judge (Junior Division), Gyanpur; plaintiffs are guilty of suppression of material facts and for this reason also, suit is liable to be dismissed; plaintiffs have no substantive right, interest or claim over disputed property at any point of time; there is another Original Suit No.443 of 2000 (Ram Narayan and others vs. Nagar Palika and others) in respect of disputed property, which is pending; out of 10 rooms got constructed by defendant 1, he is having possession of one for his own purposes and 9 have been rented out; eastern part of land, which is vacant, has been rented out for carrying on business of sand-stones etc. and in some part, temporary Gomti has been kept by certain tenants and they are carrying out their business.
11. Plaintiffs have also filed replication dated 15.4.2004 wherein broadly they reiterated what was pleaded in the plaint and denied the pleas taken by defendants 1 and 2 in written statement.
12. Defendant 6 also filed a written statement dated 30.8.2005 wherein she admitted family tree but denied the map and stated that it has been incorrectly prepared. Broadly, pleadings in plaint were also denied and disputed. In additional pleas, she said that Arazi 179 Ka, area 1 Bigha 16 Biswa was bhumidhari of defendants 1, 3 to 5 and 6 over which they were in possession as owner. Defendants 6 and 3 to 5 are owner in possession of half of the portion of disputed land on the Southern side. Plaintiffs may have their claim against defendant 1 but in respect of property i.e. half of Arazi No.179 ka, which comes to 18 biswa on the Southern side is in ownership and possession of defendants 6 and 3 to 5 and in respect thereof, plaintiffs or defendants 1 and 2 have no right or claim at all.
13. A replication dated 12.12.2005 was filed by plaintiffs replying written statement of defendant 6 also and here again plaint case was virtually reiterated.
14. On the basis of pleadings of parties, Trial Court formulated following 9 issues :
^^1- D;k oknhx.k fookfnr lEifRr ds ekfyd dkfct gS\ 2- D;k okn nQk 331 dkuwu teh0 fouk'k vf/kfu;e ls ckf/kr gS\ 3- D;k nkok oknh elyk LVkisy o ,DohlsUl ds fl)kUr ls ckf/kr gS\ 4- D;k nkok oknh oS:u fe;kn gS\ 5- D;k nkok oknh nQk 34 fof'k"V vuqrks"k vf/kfu;e ls ckf/kr gS\ 6- D;k oknh us okn dk ewY;kadu de fd;k gS vkSj iznRr U;k; 'kqYd vi;kZIr gS\ 7- D;k nkok oknh lizSlu vkQ eVsfj;y QSDV ls ckf/kr gS\ 8- D;k nkok oknh nQk 64 o 65 dkuwu fe;kn vf/kfu;e ls ckf/kr gS\ 9- D;k oknh fdlh vuqrks"k dks ikus dk vf/kdkjh gS\** " 1 . Whether the plaintiffs are the owners of the disputed property having possession over it?
2 . Whether the suit is barred by section 331 of the Zamindari Abolition Act?
3 . Whether the suit is barred by the Principle of Estoppel and Acquiescence?
4 . Whether the suit of the plaintiffs is time- barred?
5 . Whether the suit of the plaintiffs is barred by section 34 of the Specific Relief Act?
6 . Whether the plaintiffs have undervalued the suit and the court fee paid is insufficient?
7 . Whether the suit suffers from the suppression of material fact?
8 . Whether the suit is barred by sections 64 and 65 of the Limitation Act?
9 . Whether the plaintiff is entitled to get any relief?"
(English Translation by Court)
15. Evidence adduced on behalf of plaintiffs included oral evidence comprising of deposition of Ram Bihari Yadav PW-1; Alok PW-2, Bhola Nath PW- 3, Aditya Narayan Dubey PW-4 and Mahendra Kumar Pandey PW-5 while documentary evidence comprised of (i) Photocopy of registered partition dated 23.8.1960 (Paper No.10Ga); (ii) Will (Paper No.11Ga); (iii) Certificate (Paper No.12Ga) to show that partition document dated 23.8.1960 is not available in the record room; (iv) Photograph of disputed property (Paper No.34Ga); (v) Consolidation Map (Paper No.60Ga); (vi) Consolidation Form 41 (Paper No.61Ga) (vii) Form 45 (Paper No.62Ga); (viii) Form 2 Ka (Paper 63Ga) (ix) Electricity Connection Receipt (Paper No.64Ga); (x) Electricity Bills Receipt (Paper No.65Ga, 66Ga); (xi) Plaint in Original Suit No.156 of 1993 (Hari Narain vs. Anwari Begum and others) (paper No.119 Ga); (xii) Application under Section 33/39 of Land Revenue Act (Paper No.120 Ga); (xiii) Copy of plaint of Hari Narain Dubey and others (Paper No.121 Ga); and (xiv) Application for Electricity Connection (Paper No.127 Ga).
16. Defendants evidence included oral deposition of Hari Narain as DW-1 and Pratap Narayan as DW-2 and documentary evidence included Rent Agreement (Paper No.39Ga), copy of Khatauni (Paper No.40Ga), Khasra (Paper No.41Ga), written statement (Paper No.42Ga), two photographs (Paper No.100Ga) and electricity bill (Paper No.133Ga).
17. While considering issue 1, Trial Court held that plaintiffs pleaded that disputed land was earlier numbered as 309 and its new number is 179. It is then stated that new number of Arazi 309 was made 179Ka and 179Kha, but, in the map given at the bottom of plaint, these numbers were not shown at all and it was not made clear that which part is 179Ka and 179Kha. No measurement of disputed land in the map was given and plaintiffs have not been able to prove his case that they are owner and in possession of property shown by letters Ja Kha Cha Chha. Issue 1, therefore, is answered in negative. Issues 2, 3, 4 and 5 were not pressed by defendants hence answered against defendants. Issue 6 was already decided vide order dated 12.4.2006 and the said order was made part of judgment in question. Issues 7 and 8 were also not pressed by defendants hence answered against defendants. In view of findings recorded in respect of issue 1 against plaintiff, Issue 9 was answered against plaintiffs. Consequently, suit has been dismissed vide judgment and decree dated 27.2.2015 and 10.03.2015 respectively.
18. Sri H.N.Singh, learned Senior counsel submitted that family tree was not in dispute and dispute relates to property which belonged to common ancestors of parties and was settled between the parties pursuant to private settlement among themselves.
19. It is no doubt true that being co-owners in ancestral property, all the parties were having right, interest and claim over entire disputed property but in the light of private settlement, partition by metes and bound had taken place. That being so, defendants 1 and 2 thereafter had no claim to interfere in possession of plaintiffs over part of property which was assigned, recognizing share of plaintiffs and was in their possession. Since there was partition between the parties and plaintiffs had proved their possession over land shown by letters Ja, Kha, Cha Chha, Trial Court has erred in law in declining to grant decree of injunction as prayed for and therefore, impugned judgment cannot be sustained. He placed reliance upon Supreme Court's judgment in Tanusree Basu and others vs. Ishani Prasad Basu and others (2008) 4 SCC 791; A Full Bench judgment of this Court in Chhedi Lal and another vs. Chhotey Lal, AIR 1951 (Allahabad) 199; a Single Judge's judgment of this Court in Prabhoo vs. Doodh Nath and others AIR 1978 Allahabad 178 and a Single Judge judgment of Punjab and Haryana High Court in Sucha Singh and others vs. Dalip Singh passed in Second Appeal No.3123 of 1984 (O & M) decided on 23.12.2011.
20. Learned counsel for respondents on the contrary submitted that plaintiffs failed to prove their right over property in dispute as a co-sharer and also possession over disputed property and hence have rightly been denied any relief by Court below. It is thus contended that appeal is liable to be dismissed.
21. In the light of rival submissions advanced by parties, two points for determination, in our view, have arisen in this appeal:
(i) Whether plaintiffs have proved their right of co-ownership over entire disputed property, which was narrowed down to their share assigned in possession by dividing the property by metes and bound and they came in possession shown by letters Ja, Kha, Cha, Chha?
(ii) Whether Trial Court was justified in declining to grant any relief of permanent injunction to plaintiffs?
22. We have heard Sri H.N. Singh, Senior Advocate, assisted by Mr. Rajesh Kumar Tiwari, learned counsel for appellants and Sri Awadhesh Kumar Sharma, learned counsel for respondents and perused the record.
23. Both plaintiffs are husband and wife. The common ancestor of parties to the suit were Gaya Prasad, who had two sons Ram Krishna and Ganga Ram. From the record it appears that on an application filed by plaintiffs, a Court Commissioner was appointed to visit disputed site and submit a site map and position thereof. Pursuant thereto Anand Kumar Singh, Court Amin-I, visited disputed site on 30.01.2004 and submitted its report dated 03.02.2004. Relevant extract of report reads as under :
^^ijokuk vf/ki= esa layXud dkxtkr izkFkZuk&i= nkok uD'kk utjh dk voyksdu dj oknh dh fu'kkunsgh ij izfroknh&1 o nks xokgksa dh mifLFkfr esa fookfnr LFky dk fujh{k.k fd;kA fookfnr LFky esa uD'kk utjh Ldsyh eki ds vuqlkj n'kkZ;k x;k gSA lM+d xksihxat ls fetkZiqj ds nf{k.k e/; lM+d ls if'pe 46 fQV o iwjc 37 fQV ih0MCyw0 Mh0 jksM dks NksM+dj fcUnq t [k ls Ldsyh eki cuk;k x;k gSA t [k ¾ 76 fQV N p ¾ 84 fQV t N ¾ 174 fQV o [k p ¾ 174 fQV uEck ik;k x;k ftlesa vke ds iakp isM uhe dk ,d isM+ o ,d isM uhe ih0MCyw0 Mh0 esa gj Hkjk ik;k x;k o ,d isM+ ihiy nf{k.k o iwjc dksus esa ik;k x;kA uD'kk utjh esa n'kkZ;k x;k gSA blds vykok eM+gk e; fnoky 30 fQV x 17 fQV dk ik;k x;k ftlesa rhu dejk iwek cuk ik;k x;k ftlds vUnj [kkuk cukus o [kkus dh lkexzh crZu pkjikbZ fcLrj fctyh dk ia[kk o Lvksj :e esa lkeku j[kk ik;k x;k o nwljk ¼eM+gk½ eM+gk 14 fQV x 10 fQV dk ik;k x;k ftlesa Vscqy dqlhZ o cSBus ds mn~ns'; ls cuk ik;k x;kA ,d iDdk dqvk e; pcwrjk cuk ik;k x;k ftl ij iRFky dh iV~Vh ij fy[kk ik;k ^^Lo- Jh lwjt izlkn nwcs lu 1932 th.kksZ/kkj vkfnR; ujk;u nqcs dkyh nsoh xksihxat lu~ 2000] fo|qr dk iksy ftlls eM+gs esa fctyh dk dusD'ku yxk ik;k x;kA mijksDr fookfnr LFky t][k]p]N esa fufeZr o fLFkfr eM+gk isM+ ydM+h dk Vky bR;kfn oknh us viuk gksuk crk;kA fookfnr LFky dh pkSgn~nh fuEu izdkj gS%& mRrj % & lM+d xksih ls fetkZiqj e; ih-MCyw- Mh-
nf{k.k %& vkse dkj ujk;u vkfn dk dejk o [kkyh tehu iwjc %& [kkyh tehu izkFkfed fo|ky; dkyh eksgky if'pe %& izfroknh ua0 1 dk dejk o rkykcA** "After perusing the enclosures to the notice such as claim application and site-map, the inspection of the disputed site was made in the presence of defendant 1 and two witnesses.
The disputed site has been shown in scales of a ruler. The disputed site, situated south of the Gopiganj-Mirzapur road, and 46 ft. to the west of middle of the road and 37 ft. to the east of the road (leaving the width of the PWD road), has been shown in scales denoted by points 'Ja' and 'Kha'. The area has been marked by 'Ja' 'Kha' = 76 ft., 'Chha' 'Cha' = 76 ft, 'Ja' 'Chha' = 174 ft. and 'Kha' 'Cha' having 174 ft. , on which were found five mango trees, a neem tree and another neem tree alongside the PWD road and a peepal tree on the south-east corner of the disputed land. Besides, a thatched hut with walls, measuring 30 ft. X 17 ft. was found, in which three rooms were found, which also contain ingredients for cooking and eating meals, utensils, cot, bed, electric fan and items kept in the store room. Another thatched hut, measuring 14 ft X 10 ft was found, in which table and chair for the sitting purpose were found. A concrete well with platform thereon was found constructed. A stone plaque with the following words engraved thereon, was found fixed:
Late Suraj Prasad Dubey, 1932; renovated by Shri Aditya Narain Dubey, Kali Devi, Gopiganj, 2000.
An electric pole through providing electric supply to the thatched hut was found. The plaintiff claimed that the aforesaid disputed site constructed on the area marked with 'Ja, Kha, Cha, Chha' and the items such as thatched hut (madaha), trees, piles of woods etc. found thereon, belong to him.
The disputed site is bounded as under:
North: Gopigaj - Mirzapur road with PWD land.
South: The room of Omkar Narain etc. and vacant land.
East: The vacant land of Primary School, Kali Mohal.
West: The room and pond of the defendant 1.
(English Translation by Court)
24. The map submitted by Court Amin shows categorically that 10 rooms of defendants 1 and 2, a pond, a temple are in existence over land described by letters, Ka, Ja, Chha, Cha, Ga, Gha, Da. Similarly in part of land shown as Ja, Kha, Cha, Chha, in the Court Amin's map, he has found existence of two Madha, four mango trees, a tree of Peepal and Neem. Measurement of land, shown by letters Ja, Kha, Cha, Chha is 76 ft. on Northern side, 174 ft. on Eastern side and 84 ft. on Southern side. We find no mention of this Amin's report in the judgment of Court below at all. The said report has given measurement of disputed site and simply for the reason that in the map given at the bottom of plaint, measurement was not given, Trial Court was not justified in declining to consider claim of plaintiffs as it had not given any reason as to why report of Court Amin could not have been considered for this purpose.
25. We also find that defendant 1 in his deposition denied the family tree given in the plaint. However, we find that defendant 1 Hari Narain alongwith defendant 2 Smt. Asha Rani and plaintiff 1 Smt. Durga Rani filed O.S. No.156 of 1993 in the Court of Munsiff Bhadohi, Gyanpur. Sri Man Narain brother of plaintiff and defendant 1 was impleaded as defendant 2. In the aforesaid suit also family tree has been mentioned which is as under :
Gaya _______________________|______________________ | | | Ram Krishna Ganga Ram Gopi Krishna | | | Kamta Prasa Suraj Prasad Mst.Naseeba | Suraj Kali (wife) W/o La.Fau.
____|___________ |
| | |
Ram Narain Omkar Narain |
_____________________|_____________________
| | | |
Keshri Narain Sriman Narain Hari Narain Aditya Narain
_______|______________
| |
Vijay Narain Ajay Narain
26. Perusal of above mentioned family tree shows that it is substantially similar to one mentioned at the bottom of plaint of present suit. So far as relationship of plaintiffs and defendants 1 and 2 is concerned, we also find that in para 5 of the said plaint dated 30.3.1993, defendant 1 has specifically said that there was a registered family settlement dated 23.8.1960. The aforesaid pleading in plaint filed and signed by defendants 1 and 2 can be treated as their admission. That being so, family settlement dated 23.8.1960, photocopy whereof was filed by plaintiffs as Paper No.44Ga, stood admitted. It is true that it was a secondary evidence but plaintiffs filed a certificate received from Office of Sub-Registrar i.e. Paper No.12Ga, that Register of the registered document was torn and therefore certified copy of said document could not have been issued. In the application dated 09.01.2004 (Paper No.13Ga) plaintiffs clearly said that original copy of family settlement dated 23.08.1960 was in possession of defendant no.1 and therefore, plaintiffs are filing photocopy of same.
27. There is nothing on record to show that this fact was denied by defendants 1 and 2 that original copy of settlement dated 23.8.1960 was not in possession of defendant 1. In these circumstances, oral deposition of defendant 1 as DW-1 clearly appears to be incorrect and it shows that defendant 1 adopted an attitude of denial of entire case of plaintiffs and wherever found convenient, simply said that he does not remember the things or is not able to read the document due to weak eye-sight. There is no explanation with regard to defendants' own admission in pleadings of other suits, certified copies whereof was filed as evidence in the case in hand. Similar facts have been stated by defendants 1 and 2 in another proceedings initiated under Sections 33/39 of Land Revenue Act before Assistant Collector, Gyanpur, wherein an application was filed by defendants 1 and 2 alongwith plaintiff 2 seeking correction in Revenue record with regard to Arazi No.15 and in the said application also family tree was given in para 1, which is identical to the family tree given in Suit No.156 of 1993.
28. Here also in para 4, defendants 1 and 2 have relied on and referred to registered family settlement dated 23.8.1960. Trial Court unfortunately has not gone into evidence at all and we do not find any reason given by it for not referring to any evidence adduced by parties, in particular, evidence oral and documentary adduced by plaintiffs before it. From Court Commissioner's report as also other documents including electricity connection etc., it is apparent that in the property in dispute plaintiffs are in possession of a particular part of land. That being so, if co-owners are attempting to dispossess plaintiffs/ co-owners then in such circumstances an injunction could have been granted by Court below.
29. It is true that normally among co-owners when there is no division by metes and bound, no injunction can be granted but there are certain exceptions to this general principle and one of such principles is if evidence shows that co-owners are actually in possession of specified part of joint ownership property, and one or more co-owners intends to dislodge other co-owner from such possession, in such eventuality, an injunction can be granted.
30. There is no statutory law governing relations among co-sharers inter se in common law. In other words, there is no statutory provision which provides as to how common land or commonly or jointly owned land, if possessed by co-owners differently, jointly or separately how their inter se relationship should be regulated and governed. Hence, their relationship has to be dealt with in terms of various authorities in which such aspects have been dealt with and general principles of rule of justice, equity and good conscience shall be applied.
31. We find that Full Bench of this Court in Chhedi Lal and another (supra) has dealt with at length earlier case law on the subject and has given its conclusion as under :
"As a result of the foregoing discussion, it appears to us that the question of the right of co-sharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a co-sharer, whose right in respect of joint land has been invaded by the other co-sharers-either by exclusively appropriating and cultivating land or by raising constructions thereon. The conflict in some of the decisions has apparently risen from the confusion of the two distinct matters. While therefore a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The right to the relief for 'demolition and injunction will be granted or withheld by the Court according as the circumstances established in the case justify. The Court may feel persuaded to grant both the reliefs if the evidence establishes that the plaintiff cannot be adequately compensated at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it. On the contrary if material and substantial injury will be caused to the defendant by the granting of the relief, the Court will no doubt be exercising proper discretion in withholding such relief. As has been pointed out in some of the cases, each case will be decided upon its own peculiar facts and it will be left to the Court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies. That the Court in the exercise of its discretion will be guided by considerations of justice, equity and good conscience cannot be overlooked and it is not possible for the Court to lay down an inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused. "
32. In Tanusree Basu and others (supra) also this aspect has been considered by two Judges Bench also. There parties were co-owners. A suit was filed for partition. The properties, which was in possession of co-sharers, were distributed in Schedule -A of plaint. Parties entered into a development agreement and properties subject matter of development agreement were distributed in Schedule B to the plaint. As per said agreement, three flats and parking spaces for three cars were allotted to the parties. An application for grant of injunction in respect of Schedule-A property, restraining respondents from handing over allotted flats and from selling out any flats in the premises in question was filed in the suit. The averments made in application was that at present plaintiffs and defendants 1 to 6 are occupying three flats and 3 garages at premises no.46A, Puran Chandra Mitra Lake, Kolkata, which was undivided property. The application further stated that at present plaintiffs have 93/240 undivided share, legal heirs of late Pinaki Prosad Basu (defendant 2 to 6) have 54/240, undivided share and defendant 6 have 93/240 undivided share of Schedule A and B properties. It is also said that by amicable agreements, parties are in possession of separate flats of Schedule B but there is no demarcated possession according to respective shares of parties.
33. In the above backdrop of facts, Court considered specifically a question whether a co-owner, if in specific possession of joint property, he could be dispossessed therefrom without intervention of Court. Answering said question, Court has said that if parties by mutual agreement entered into possession of separate flats no co-owner shall be permitted to act in breach thereof.
34. In the present case, claim set up by plaintiffs is that they are in possession of specific part of jointly owned property pursuant to a mutual settlement between the parties and that being so, they cannot be evicted or dispossessed forcibly by defendants and on that ground injunction was prayed. Defendants on the contrary disputed the very claim of plaintiffs i.e. plaintiffs had no joint ownership over disputed property. It is in these circumstances, Trial Court firstly was under an obligation to examine whether plaintiffs have any joint ownership over property in dispute or not; and secondly, whether they got possession of specific part of such property with mutual consent of parties pursuant to alleged family settlement. Unfortunately, we find that various documentary evidence placed on record have not been examined by Court below at all. We ourselves find difficulty in examining those documents for the reason that none of the documents has been exhibited.
35. It is not a case where documents have been proved and the Trial Judge did not mark them as exhibit. But from the documents we do not find that there is any exercise of admission and denial of the documents, and thereafter parties were left to prove the documents which were not admitted and rest of documents which were not proved ought to have been rejected which has not been done. In this regard law is well settled that in a Court of law when documents are relied by parties, they have to be proved by parties in the manner and procedure prescribed in the General Rule (Civil) applicable to the Civil Courts read with Order 13 of CPC. On this aspect the matter has been examined time and again and we find it appropriate to reiterate the same since this kind of error we find very frequently being committed by Trial Courts and we are almost every day coming across such kind of procedural failure on the part of Trial Courts, which is very serious and goes to the root of matter.
36. In Sadik Husain Khan vs Hashim Ali Khan and others, 1916 ILR (38) All 627, Judicial Committee said:
"Their Lordships, with a view of insisting on the observance of the wholesome provisions of these Statutes, will, in order to prevent injustice, be obliged in future on the hearing of Indian appeals to refuse to read or permit to be used any document not endorsed in the manner required."
37. In Secretary of State vs. (Shrimati) Sarla Devi Chaudhrani, AIR 1924 Lahore 548 followed in Hari Singh vs. Firm Karam Chand-Kanshi Ram, AIR 1927 Lahore 115 and Imam-ud-Din and Anr. vs. Sri Ram Perbhu Dial, AIR 1928 Lahore 142, it was said that documents admitted on record without making endorsement prescribed by Rules cannot be regarded as having been brought on record legally, before Court.
38. In Feroze Din and Ors. vs. Nawab Khan and others, AIR 1928 Lahore 432, Court said that documents should not be endorsed until they are proved. Sometimes the Court may mark a document as an exhibit without having it proved.
39. In Sait Tarajee Khimchand and others vs. Yelamarti Satyam alias Satteyya and others, AIR 1971 SC 1865, Court said that merely marking of an exhibit does not dispense with the proof of documents. It was followed in Sitaram vs. Ram Charan and Ors. AIR 1995 MP 134.
40. Looking to the entirety of the facts and discussion made above, we have no hesitation in holding that Trial Court has not held trial properly and in accordance with law and has committed manifest error which is patently illegal and has rendered entire judgment and decree to be unsustainable in law.
41. We, therefore, answer question (ii) in favour of appellant by holding that Trial Court has erred in law in declining to grant any relief to plaintiffs for the reason that it has not examined the matter in proper perspective and in accordance with law, as discussed above. We leave question (i) open and unanswered since we propose to remand the matter and question (i) will now have to be again considered by Trial Court after following observations made herein above.
42. Appeal is accordingly allowed. Judgment and decree dated 27.02.2015 and 10.03.2015 are hereby set aside. Original Suit No. 8 of 2004 is restored to its original number and Trial Court is directed to proceed further to decide the Original Suit complying with observations and directions made above with regard to proof of documentary evidence.
43. Parties shall bear their own costs.
Order Date :- 14.1.2020 KA