Himachal Pradesh High Court
Sumitra Devi vs Hoshiar Chand on 1 August, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CMPMO No. 270 of 2019
.
R eserved on: 16.7.2019
Date of Decision: August 01,2019
Sumitra Devi ......Petitioner.
Versus
Hoshiar Chand ...Respondent.
Coram:
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? Yes.
For the Petitioner : Mr. G.R. Palsra, Advocate.
For respondent : Mr. K.D. Sood, Sr. Advocate
with Mr. Shubham Sood,
Advocate.
Chander Bhusan Barowalia, J.
The present petition is maintained by the petitioner under Article 227 of the Constitution of India, against the judgment dated 27.04.2019, passed by the learned Additional District Judge-I, Mandi, H.P. (Camp at Sundernagar) in Civil Misc. Appeal No.67/2018, affirming the order dated 25.10.2018, passed by the learned Senior
-------------------------------------------------------------- Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 2Civil Judge, Court No.1, Sundernagar, District Mandi, H.P. in CMA No.143-VI/2018 in Civil Suit No.67-I of 2018, with a prayer to set aside the impugned judgments and order .
and to allow the present petition.
2. Briefly stating the facts giving rise to the present petition are that;
the respondents, who were the appellants before the learned Trial Court below (hereinafter to be called as "the respondents") had filed a suit against the respondent, (hereinafter to be called as "the petitioner") for declaration, injunction and easement alleging that the respondent and one Sh. Banshi had purchased land in dispute in the present lis, vide common sale deed dated 15.09.2005, comprised in Khata Khatauni No.327/368, kitas 6, measuring 12-15-06 bighas to the extent of 0-12-2 bigha, situated in Mohal Mahadev/10, Tehsil Sundernagar, District Mandi, H.P. It has been alleged that all the Vendees had agreed to leave one meter wide common passage from the main public path upto the end of their plot (s). They divided this land between themselves amicably and occupied their plots leaving one meter common passage from eastern side of the plot upto its end. Further, that first plot was ::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 3 occupied by one Banshi Lal, second plot was taken by Hosiar Chand and thereafter further occupied by Bimla and Ashok Kumar. Banshi has constructed residential .
house over his plot bearing Khasra No.1311/1, and he has sold his residential house on 18.04.2017 to the petitioner and on 15.7.2017, without the consent and permission of the respondents, the present petitioner has unlawfully blocked the said path on its front by constructing a wall and has left no passage to the plots of the respondents herein.
r The respondents have
approached the Local Panchayat, but all in vain. The
respondents have also filed application for stay against the respondents. The petitioner has averred in the written statement filed before the learned Court below that she has purchased the house existing over Khasra No.1822/1345 from one Banshi, which was stated to be free from all encumbrances. It has been averred that the suit land has been partitioned finally by the order of the A.C., Ist Grade, Sundernagar, District Mandi, H.P., dated 15.06.2016 and mutation No.2528, dated 21.11.2016, has been attested and the partition order do not provide any such path and Banshi now has joined his hands with the respondents in order to cause loss to the ::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 4 petitioner and the wall has been constructed in order to protect her property from stray animals and the intruders. It has been alleged that no finger has been .
raised by the respondents when the said house was constructed. The path, as claimed by the respondents, will unnecessarily create obstructions and hindrances in the privacy of the petitioner. The respondents are enjoying the right of way to their plots from the other side and have transported the construction material through the said path, as Hoshiar Chand has also constructed his house. The learned Trial Court passed order of mandatory injunction in favour of the respondents vide order dated 25.10.2018, and such order was challenged by the petitioner by filing appeal, but the same was dismissed vide judgment dated 27.04.2019 passed by the learned Addl. Sessions Judge-I, Mandi, H.P..
3. It has been alleged that the judgment and order passed by both the learned Courts below are both against law and facts on record, which have been passed after ignoring the true facts of the case and provisions of order 39 Rules 1 & 2 of the Code of Civil Procedure, therefore, it has been prayed that the ::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 5 judgment and order under challenge are liable to be set aside.
4. Further, it has been alleged that both the .
learned Courts below have gravely and manifestly fallen into error by granting the main relief in favour of the respondents, as the petitioner was directed to remove the obstruction to the passage exiting over the suit land shown in the spot map, because there is no spot map filed by the respondents except self prepared sketch prepared by the respondents, which is totally contrary to the spot position. It has been averred that the petitioner has constructed the wall on the back side of her house. There is no wall on the front side of her house. This fact is also clear from the photographs (Annexure-P2) and there is no path even on the back side of the house of respondent Hoshiar Singh and the plots of Bimla Devi and Ashok Kumar are still vacant. It has further been alleged that there is a path over the government land, which leads to another path (NH) and both the learned Courts below have ignored this aspect.
5. It has been alleged that the relief of mandatory injunction at the initial stage, cannot be granted, which is the main relief in this case. Both the ::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 6 learned Courts below have not considered the fact that Khasra No.1311/1 has been allotted to Banshi Lal measuring 0-4-1 bigha and mutation has been attested .
on 21.11.2016. Similarly, the land of the respondents have been partitioned, however, it has been mentioned that no objection was raised by the respondents when Banshi Ram raised construction of his house and when the said house was purchased by the petitioner, then at a very later stage, out of jealousy, the present suit has been instituted by the respondents in order to cause huge loss to the petitioner, despite the fact that there is other path available on the spot, which is being used by the petitioner and the respondents also. The respondents cannot take undue advantage of their own wrong act, as the respondent Hoshiar Singh, while constructing his house has not himself left any passage by the back side of his house. The factum of partition has been mentioned in the column of Kafiat in the Jamabandi for the year 2012-2013. Hence, the interim mandatory injunction can only be granted in rare of rarest cases and the present case does not fall under this category, as there are other paths available to the parties to the lis. There is no special circumstance in this case for granting interim ::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 7 mandatory injunction. It has been averred that the judgments relied upon by both the learned Courts below are not applicable in the instant case, because it was held .
by the Hon'ble Apex Court that the relief of inter-locator mandatory injunction can be granted to preserve the status as on the date of the suit, whereas the house has been constructed in the year 2016 and the suit has been filed in a cool and planned manner on 20.6.2018. The delay and latches clearly defeated the claim of interim mandatory injunction in favour of the respondents and that actually, the judgment rendered in a case titled Tek Singh versus Shashi Verma and others, reported in AIR 2019 SC 1047, has been wrongly interpreted by the learned First Appellate Court.
6. It has been alleged that the respondents have failed to make out a prima facie case for grant of interim mandatory injunction in their favour and the comparative mischief in this case is likely to cause great loss to the petitioner. Further, it has been alleged that this Court has dealt this issue elaborately by holding that main relief should not be granted by way of interim relief, because to do so, amounts to decree the suit well before its trial. Both the learned Court below were of the ::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 8 opinion that there is no other path, except the path, as is alleged by the respondents. Hence, such type of finding of both the learned courts below are quite erroneous, .
which are not based on the true facts of the case, as prima facie, there is other path, which is being used by the parties to the lis continuously and the photographs clearly demonstrate the existing of pucca public path, which leads to the house of petitioner, Hoshiar Singh and plots of respondents No.2 and 3 and both the learned Courts below have not at all considered the factum of partition of suit land between the parties. It has been submitted that when Banshi has constructed his house, no objection was raised by the respondents and when the petitioner purchased the built up house, the respondents started raising fingers in a cool and planned manner so that the petitioner will be forced to sell this house to other person, as the petitioner belongs to other caste then that of the respondents and both the learned Court below have unnecessarily shown leniency in granting the main relief in favour of the respondents, which has materially prejudiced the entire case of the petitioner.
7. It has been alleged that there is no easement of necessity in this case in favour of the respondents, ::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 9 because there are many alternative paths available to them because the path as is claimed by the respondent is not only approaches to their houses and plots. Hoshiar .
Singh respondent has himself not left any such space for path while he has constructed two storeyed house from the backside of his house. It has been averred that the petitioner has failed to understand why the respondents are claiming path from the backside of the house of the petitioner. When there are alternative paths available to the respondents, no necessity at all to grant interim mandatory relief in their favour, hence, undue favour has been shown in favour of the respondents by both the learned Courts below, while granting such relief which could not be granted at the early stage of the suit and both the learned Courts below have blindly relied upon the alleged sketch map prepared by the respondents, which is inadmissible document in the eyes of law, as the respondents have not approached the revenue authorities for issuing of the spot map and an adverse inference should have been drawn against the respondents by not filing the spot map, but the findings of both the Courts below are contrary to the records of the case.
::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 108. It has been alleged that both the learned Courts below have allowed the stay application of the respondents by adopting hyper technical and pedantic .
approach and has travelled beyond the scope of the record of this case. The approach adopted by the learned Court below is highly illegal and the same is against the true spirits of the provisions of Order 39 Rules 1 and 2 CPC. It has been alleged that the Aks Tatima (Annexure P-8) made it crystal clear that the plot of the petitioner is quite separate bearing Khasra No.1311/1 in which no path has been portrayed.
9. I have heard the learned counsel appearing for the parties and also gone through the record carefully.
10. Learned counsel appearing for the petitioner has argued that the learned Courts below should have taken into consideration all the facts and evidence on record to its true perspective and the present petition may be allowed in the interest of justice and fair play and necessary directions may be issued to the learned Trial Court in this regard.
11. On the other hand, learned senior counsel appearing on behalf of the respondents has argued that that earlier path was there and now it is closed by the ::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 11 present petitioner by putting the bricks on it on the pretext that she will not allow the back portion of her house to be used as path. He has further agrued that the .
petitioner cannot obstruct the path on one pretext or the other, when it was existing and agreed upon between the parties and that the that the respondent in this lis will suffer irreparable loss and injury and that the respondent has a prima facie case in his favour. Hence, prayed that justice.
r to the present petition be dismissed in the interest of
12. Reply filed by the respondents. It has been submitted that both the Courts below, on appreciation of oral as well as documentary evidence, have restrained the present petitioner from obstructing the passage and have granted a mandatory injunction directing the removal of obstruction created to the passage existing over the suit land as shown in the spot map till the disposal of the suit. It has further been submitted that both the learned Courts below have exercised their jurisdictional discretion in passing the order, which deserves to be upheld. It has been alleged that the plaintiff-respondent had filed civil suit for permanent prohibitory and mandatory injunction for removal of the ::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 12 obstruction caused by the defendant and interference in the passage existing on the suit land during the pendency of the case. Further, it has been alleged that .
the learned Senior Civil Judge, Court No.1, Sundernagar granted interim injunction in favour of the respondent and the appeal filed by the petitioner was dismissed by the Addl. District Judge(I), Mandi, H.P., by affirming the order of the learned Senior Civil Judge. It has been submitted that when the passage has been provided for in the sale deed executed in favour of the predecessor of the present petitioner and who sold the same in favour of the present petitioner subject to the said liabilities, it is not open to the petitioner to deny or obstruct the said passage of the petitioner. In fact when there is passage provided for in the sale deed for the replying respondent of which he is being deprived of for the grant of relief by the Courts below, is just equitable and the orders deserves to be confirmed. It has been submitted that a false plea has been raised by the petitioner in the present petition as well as in the written statement, which cannot be permitted to be raised and that Smt. Sumitra Devi, petitioner herein derived her title from one Banshi Lal and having stepped into his shoes and she is bound by the ::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 13 contents of the sale deed which provided for one meter path from the plot as depicted in the plan. Further, it is submitted that both the courts below have rightly .
appreciated the pleadings and the documents and granted interim injunction in favour of the replying respondent. It has also been submitted that the when the petitioner did not agree to the request of the replying respondent not to obstruct the passage and also remove the obstruction despite being approached Panchayat in this behalf the plaintiff was compelled to file r by the the suit. Hence, the respondents have prayed that the present petition be dismissed. The petitioner also filed rejoinder to the reply and reiterated the facts as mentioned in the petition.
13. In view of the submissions made hereinabove and after taking consideration all the facts on record, this Court finds that earlier path was there and now it is closed by the present petitioner by putting the bricks on on it on the pretext that she will not allow the back portion of her house to be used as path, but the facts are otherwise. She cannot obstruct the path on one pretext or the other, when it was existing and agreed upon. The fact remain that the present respondent will suffer ::: Downloaded on - 29/09/2019 01:39:26 :::HCHP 14 irreparable loss and injury in case the stay is not granted in his favour by the learned Courts below. The respondents has a prima facie case in his favour. Balance .
of convenience was also in his favour and, otherwise also, the path was existing on the place and the present petitioner/appellant has no right to obstruct the same and the learned Courts below have committed no illegality in passing the impugned order.
14.
just reasoned
rand to
This Court finds that the impugned order is in accordance with law after appreciating the facts, which have come on record to its true perspective and law has been applied correctly.
There is nothing to interfere with the well reasoned order passed by the learned Court below. Hence, the present petition sans merit, deserves dismissal and is accordingly dismissed. No order as to costs.
15. Parties, through their learned counsel, are directed to appear before the learned Court below on 3 rd September,2019. Pending application(s), if any, also stand(s) disposed of.
(Chander Bhusan Barowalia)
August 01,2019 Judge
( M.gandhi)
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15
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