Smt. Gita Devi vs Shri Subhash Chand on 21 March, 2017

[Cites 5, Cited by 0]

Himachal Pradesh High Court

Smt. Gita Devi vs Shri Subhash Chand on 21 March, 2017

Bench: Sandeep Sharma

         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                                                RSA No. 506 of 2015
                                                       Decided on: March 21, 2017
    --------------------------------------------------------------------------------------
    Smt. Gita Devi                                                   .........Appellant
                                           Versus




                                                                                .

    Shri Subhash Chand                                                  ....Respondent
    --------------------------------------------------------------------------------------
    Coram





    Hon'ble Mr. Justice Sandeep Sharma, Judge
    Whether approved for reporting?1 Yes.
    --------------------------------------------------------------------------------------
    For the appellant               Mr. Ajay Sharma, Advocate.




                                                   of
    For the respondent:             Mr. S.C. Sharma, Advocate.
    --------------------------------------------------------------------------------------
                       rt
    Sandeep Sharma, Judge:

Instant Regular Second Appeal is filed under Section 100 CPC against judgment and decree dated 12.5.2015 passed by the learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No. 9-D/XIII/2014, affirming judgment and decree dated 17.5.2014 passed by the learned Civil Judge (Junior Division), Court No. II, Dharamshala in Civil Suit No. 300/13/11, whereby suit for permanent injunction having been filed by the appellant-plaintiff (herein after, 'plaintiff') came to be dismissed.

2. Briefly stated the facts as emerge from the record are that the plaintiff filed a suit for permanent injunction restraining the defendant from claiming exclusive ownership and possession qua the suit land, averring therein that land comprised in Khata No. 188 Khatauni No. 341 Khasra No. 497, measuring 00-05-08 Hectares situated in Mahal 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes.

::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 2

Uperli Dar, Mauza Ghaniara, Tehsil Dharamshala District Kangra, HP (herein after, 'suit land') was jointly owned and possessed by the parties alongwith others. Plaintiff further averred that some persons in Khatauni No. 342 to 345 are shown in possession without status, about .

which a separate suit is pending in the Court of Civil Judge (Junior Division)-I, Dharamshala. Plaintiff further alleged that entire suit land comprising Khatauni No. 339, 340 and 341 is jointly owned and possessed by owners and defendant but in the revenue record, separate of possession has been shown which is not as per the spot position.

Plaintiff also alleged that the defendant has purchased a share in the rt Khata from Smt. Reena and other co-owners and that possession has been recorded in Khatauni No. 341, Khasra No. 497. She further alleged that since suit land was much more valuable, defendant taking advantage of the entry in the revenue record was attempting to occupy the same. It is further alleged that in order to occupy the suit land, which is partly in possession of the plaintiff, defendant applied for demarcation. Plaintiff also claimed that defendant is proclaiming himself to be exclusive owner-in-possession of the suit land and harassing the plaintiff and others through police. By way of suit, plaintiff claimed that till the suit land/entire Khata is partitioned, defendant has no right to appropriate this valuable piece of land to the disadvantage of plaintiff and other co-owners. Plaintiff prayed for decree restraining the defendant from changing the nature of suit land, raising any fence/barbed wire and artificial partition, raising ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 3 construction on the land as described above, till the partition of Khewat No. 188 by metes and bounds. In the alternative, plaintiff also prayed for permanent injunction.

3. Defendant refuted the aforesaid contentions put forth on behalf .

of the plaintiff by filing written statement. Defendant specifically stated that the suit of the plaintiff is barred under Order IX Rule 9 CPC and Order XXIII Rule 1 CPC. While claiming himself to be in exclusive possession of the suit land, he stated that there had been a of private partition of suit land between the predecessor-in-interest of the plaintiff and one Hari Kishan and Khasra No. 497 fell to the share of rt Hari Kishan and possession of Hari Kishan was also recorded qua Khasra No. 497, which was clear from previous records, as such his possession was recorded qua suit land. Defendant further claimed that Hari Kishan sold suit land to the defendant vide registered sale deed dated 1.10.1987 and possession was also handed over to the defendant on the spot. It is also averred that the defendant got the suit land fenced with angle iron and barbed wire after getting it demarcated through revenue agency on 25.3.1990, in the presence of plaintiff and Hari Kishan. Defendant also averred that the suit land was exclusively owned and possessed by him, therefore, question of getting suit land partitioned, did not arise. In this background, he prayed for dismissal of suit.

4. Learned trial Court, on the basis of pleadings framed following issues:

::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 4

"1. Whether the plaintiff is entitled for the relief of permanent perpetual and prohibitory injunction with respect to suit property as prayed for? OPP

2. Whether the suit of plaintiff is legally and factually not maintainable in the present form, as alleged? OPD

3. Whether the plaintiff has not come to the court with clean hands and suppressed the material facts from the court, as .

alleged? OPD

4. Whether the plaintiffs are estopped by their act, conduct and acquiescence to file the present suit? OPD

5. Relief."

5. Subsequently, learned trial Court, on the basis of pleadings as of well as material and evidence adduced on record by the respective parties, dismissed the suit. Plaintiff filed appeal before the learned rt Additional District Judge-II, however, the fact remains that the appeal was also dismissed. Hence, the present Regular Second Appeal.

6. Present regular second appeal was admitted on 27.10.2015, on the following substantial questions of law:

"1 Whether impugned judgments and decrees stand vitiated owing to applying provisions of res judicata and provisions of Order 23 Rule 1 of the Civil Procedure Code with respect to injunction suits?

2. Whether every co sharer being owner of every inch of land uptil its partition and as such injunction suit by co owners against another co owner not to raise construction before partition is maintainable? If yes, impugned judgments and decrees passed by Courts below stand vitiated and liable to be set aside?"

7. Mr. Ajay Sharma, learned counsel representing the appellant vehemently argued that the impugned judgments and decrees passed by the learned Courts below are not sustainable as the same are not based on correct appreciation of evidence available on record as well as law and as such deserve to be set aside. Mr. Sharma, while referring to the ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 5 impugned judgments and decrees, vehemently argued that a bare perusal of same suggests that the learned Courts below have failed to appreciate the evidence in its right perspective, as a result of which, erroneous findings have come on record to the detriment of the .

plaintiff and as such same can not be allowed to sustain. Mr. Sharma, contended that it is settled position of law that if an entry comes in revenue record without any basis, that too abruptly, presumption of truth can not be attached to the same. With a view to substantiate his of arguments, Mr. Sharma invited the attention of this Court to the judgments and decrees passed by the learned Courts below to rt demonstrate that even the Courts below came to a conclusion on the basis of material on record that there is no basis for such entry and as such Courts below ought to have ignored aforesaid entry in favour of the defendant while considering prayer of plaintiff for grant of decree of permanent injunction. Mr. Sharma, forcefully contended that the learned Courts below overstepped their jurisdiction while concluding that co-owners are in separate possession on the basis of some arrangement and other co-owners can not disturb said possession, except by filing suit for partition. Mr. Sharma further contended that as far as suit for partition is concerned, same is distinct and separate remedy available to the plaintiff but for immediate relief suit for injunction having been filed by plaintiff, ought to have been decreed in the facts and circumstances of the case, where plaintiff successfully proved on record that suit land is joint and same has not been ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 6 partitioned in metes and bounds, as required under law. Mr. Sharma, while inviting attention of this Court to Ext. DW-1/A, contended that admittedly, earlier suit for injunction was withdrawn by the plaintiff when respondent-defendant assured not to take law in his own hands.

But, once in the year 1991, defendant started taking steps for raising construction, plaintiff rightly filed suit for injunction on fresh cause of action and as such, Courts below wrongly applied principle of res judicata and provisions of Order IX Rule 9 CPC in the case of plaintiff, of while dismissing her suit. In the aforesaid background, Mr. Sharma prayed that suit having been filed by the plaintiff for injunction may be rt decreed after setting aside judgments and decrees passed by learned Courts below.

8. Mr. S.C. Sharma, learned counsel representing the respondent-

defendant (herein after, 'defendant') supported the impugned judgments and decrees. While referring to the same, Mr. S.C. Sharma stated that bare perusal of the judgments and decrees suggests that the same are based upon correct appreciation of evidence adduced on record by the respective parties and as such there is no scope of interference by this Court, especially in view of concurrent findings of facts and law recorded by the Courts below. To refute the contentions having been raised by Mr. Ajay Sharma, Mr. S.C. Sharma made this Court to travel through the evidence on record having been adduced by the respective parties, to demonstrate that the defendant purchased suit land from one Shri Hari Kishan, who happened to be in exclusive ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 7 possession of the suit land. While referring to the document Ext. DW-

2/A i.e. sale deed, Mr. S.C. Sharma contended that the defendant after having purchased the land from Hari Kishan, was put to possession qua a specific portion i.e. Khasra No. 497 and as such name of defendant .

was rightly reflected in the Jamabandi, Ext. PW-1/B. He further contended that revenue entry as reflected in Ext. PW-1/B is strictly in consonance with sale deed, Ext. DW-2/A and as such there is no force in the contention put forth by the learned counsel representing the of plaintiff. While referring to Exts. PW-1/B and D1, Mr. Sharma stated that all the cosharers were put to possession qua specific parcels of rt land. He also stated that as per column of remarks in the Jamabandi (Ext. D1), mutation No. 100 was sanctioned and as such there is no force in the contention of the plaintiff that there was no basis, whatsoever, for effecting change in the revenue entry, whereby defendant was shown to be in exclusive possession of suit land. While concluding his arguments, Mr. Sharma strenuously argued that this Court has a limited jurisdiction to re-appreciate the evidence led on record by respective parties while exercising powers under Section 100 CPC, that too, when both the learned Courts below have returned concurrent findings of facts and law. In this regard, he placed reliance upon judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, wherein the Hon'ble Supreme Court has held:

::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 8

"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has .

earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on of oral and documentary evidence and the judgment of the High Court cannot be sustained."

(p.269)

9. rt Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-appreciating the evidence available on record, but as emerges from the case referred above, there is no complete bar for this Court to upset the concurrent findings of the Courts below, if the same appears to be perverse.

10. In this regard reliance is placed upon judgment passed by Hon'ble Apex Court in Sebastiao Luis Fernandes (Dead) through LRs and Others vs. K.V.P. Shastri (Dead) through LRs and Others, (2013)15 SCC 161 wherein the Court held:

::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 9

"35. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth v. Seshammal, (2006)5 SCC 545, wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below :

(SCC pp.555-56) "24. The principles relating to Section 100 CPC relevant for .

this case may be summarised thus:

(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law.

Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a of document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-

recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 10 on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of .

law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to interfere with the same." (pp.174-175)

11. I have heard the learned counsel for the parties and gone through the record carefully. Since both the substantial questions of law are of interconnected, as such, same are being taken up together, to avoid repetition of discussion of evidence.

12. While hearing arguments having been advanced by the learned counsel representing the parties, this Court had an occasion to peruse pleadings as well as evidence adduced on record by the respective parties, perusal whereof nowhere suggests that there is any mis-

appreciation and misreading of evidence by the Courts below while rejecting the claim of the plaintiff, who, while filing suit for permanent injunction specifically admitted that suit land is/was jointly owned and possessed by the parties to the lis alongwith others. It is also admitted case of the plaintiff that the defendant purchased share in Khata from Smt. Reena and others, as such, his possession qua suit land was recorded. In nutshell, case of the plaintiff is that the suit land was joint and same was valuable being abutting to the road and defendant could not be allowed to take undue advantage of entry in revenue record qua his possession. As per the plaintiff, since suit land has not been ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 11 partitioned in metes and bounds, defendant has no right to claim exclusive possession and to raise fence thereupon. Perusal of Ext. D2 clearly suggests that plaintiff had filed suit for permanent injunction restraining defendant and one Shri Prem Chand, from taking .

possession of any part of suit land, digging the land, raising any construction and changing the nature of land comprising of Khata No. 95, Khatauni Nos. 253, 254, 255, 256, 257, Khasra Nos. 460, 480, 481, 482, 492, 497, 499, 484, 494, 495, 483, 485, 493 and 496/1 Kita 14 of measuring 0-76-13 Hectares situate in Mohal Gabli Dar, Mauza Khaniara, Tehsil Dharamshala, District Kangra, HP, till the joint land rt is partitioned. Perusal of Ext. DW-1/A, copy of plaint filed in earlier suit, clearly suggests that plaintiff had filed suit on same and similar grounds as have been taken in the present suit in the year 1990. In the aforesaid suit, plaintiff prayed for decree of permanent injunction restraining defendants No.1 and 2 from taking possession of any part of joint land and raising any construction over the suit land. Perusal of Ext. D2 clearly suggests that aforesaid suit having been filed by plaintiff for permanent injunction on same and similar grounds as have been taken in the present suit, was withdrawn unconditionally and no permission/liberty was obtained from the Court for filing suit afresh, on same and similar cause of action.

13. Mr. Ajay Sharma, vehemently argued that there is/was no bar for the plaintiff to file suit for permanent injunction against the defendant on the same and similar grounds because, fresh cause of ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 12 action accrued, when, in the year 2011, defendant started interfering in the suit land by erecting iron pillars. Mr. Sharma further contended that since in the year 1991, defendant agreed not to interfere in the suit land, plaintiff withdrew suit, unconditionally, but by no stretch of .

imagination, same can be treated as bar for the plaintiff to file fresh suit, which is admittedly on fresh cause of action. But this Court, after carefully perusing Ext. DW-1/A i.e. plaint having been filed by the plaintiff in the earlier suit, as well as Order dated 19.1.1991 (Ext. D2) of sees no force, much less substantial, in the arguments having been made by the learned counsel representing the plaintiff. Perusal of the rt plaint filed in earlier suit clearly suggests that the plaintiff on the same and similar grounds, as have been taken in the present suit, approached this Court seeking decree of permanent injunction restraining defendant from raising any construction over the suit land in Khasra No. 497.

14. At this stage, provisions of Order XXIII Rule 1 CPC are reproduced below:

"Order XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS

1. Withdrawal of suit or abandonment of part of claim. -(1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 13 pleader to the effect that abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied, --

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, .

It may, on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff --

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), He shall be liable for such costs as the Court may award and shall be of precluded from instituting any fresh suit in respect of such subject- matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule 93), any suit or part of a claim, rt without the consent of the other plaintiffs."

15. Aforesaid provisions of law clearly suggest that once the plaintiff withdrew from suit, without permission, as could be sought under Order XXIII Rule 1 (3), he/she shall be precluded from instituting any fresh suit in respect of said subject-matter or such part of claim. In earlier suit having been filed by the plaintiff, plaintiff himself admitted that defendant had purchased land measuring 0-05-08 Hectares, as is apparent from copy of Jamabandi for the year 1984-85 but since suit land has never been partitioned between the original owners, defendant can not be allowed to occupy best portion of land on the basis of sale deed made in his favour by one of the cosharers.

Plaintiff further claimed in the suit as referred to above that the defendant has no right to get aforesaid possession of suit land till the same is partitioned.

::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 14

16. It clearly emerges from the record that aforesaid suit having been filed by the plaintiff was withdrawn by the plaintiff himself on 19.1.1991 without seeking permission of the Court as provided under Order XXIII Rule 1(3) CPC for filing fresh suit on the same cause of .

action. If plaint of the instant suit having been filed by the plaintiff is analyzed, juxtaposing the plaint of earlier suit, this Court sees no illegality or infirmity in the findings returned by the Courts below that plaintiff was precluded from filing suit on same cause of action as was of pointed out in the earlier suit filed in the year 1991. This Court sees no force in the contentions of Mr. Sharma that since defendant stopped rt interfering in the suit land, plaintiff withdrew earlier suit, because, admittedly, there is nothing on record suggestive of the fact that defendant had given any undertaking not to interfere in the suit land, on the basis of which, plaintiff withdrew the suit. Moreover, this Court is unable to find any averment in the plaint of the instant suit having been filed by the plaintiff with regard to filing of earlier suit by him against the defendant. Similarly, plaintiff has stated that the cause of action accrued to him about a fortnight ago, when defendant tried to fence/raise construction on suit land.

17. Hence, this Court, after perusing the averments contained in both the plaints, admittedly having been filed by the plaintiff by way of two suits, sees no illegality or infirmity in the impugned judgments and decrees, whereby suit of the plaintiff has been held to be barred in view of provisions contained in Order XXIII Rule 4 CPC. Moreover, if the ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 15 aforesaid pleadings as made in the subsequent plaint as well as submissions having been made by the learned counsel representing the plaintiff are accepted, it certainly suggests that defendant remained in peaceful possession of suit land from 1991 till the filing of the .

subsequent suit in the year 2011, meaning thereby there was no occasion for the Courts below to grant decree of permanent injunction in favour of plaintiff as was prayed.

18. There can not be any quarrel with the settled proposition of law of that every cosharer is owner of every inch of land till its partition, but in the present case, perusal of Ext. D1, Jamabandi for the year 1984-85, rt clearly suggest that suit land was owned and possessed by Har Bhaj and Hari Kishan in equal shares. As per column of possession, Hari Kishan has been recorded in exclusive possession of the suit land.

Perusal of remarks column suggests that Hari Kishan sold land to the defendant and accordingly, mutation No. 100 was attested, whereafter, defendant succeeded to the share of Hari Kishan. Moreover, it emerges from the column of remarks that plaintiff succeeded to the share of Har Bhaj being his widow and Smt. Reena, Smt. Hina Kumari, Pinki, Surender Kumar and Suresh Kumar etc. succeeded to the share of Hari Kishan. Ext. PW-1/B, Jamabandi for the year 2009-10 also proves on record that suit land was jointly owned and possessed by the parties to the lis alongwith other cosharers but the same is in exclusive possession of defendant. Perusal of Ext. DW-2/A i.e. sale deed clearly suggests that defendant purchased suit land from Hari Kishan. Close ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 16 reading of aforesaid sale deed suggests that Hari Kishan sold suit land, which was in his exclusive possession to the defendant and his possession thereto was also delivered to the defendant. On the strength of Ext. DW-2/A, name of defendant came to be recorded in the .

Jamabandi, Ext. PW-1/B, as owner in exclusive possession of suit land.

Perusal of Ext. PW-1/B leaves no doubt in the mind of the Court that all the cosharers have been recorded in exclusive possession of different Khasra numbers.

19. True, it is that there is no document on record suggestive of the fact that some arrangement qua separate parcels of land, as recoded in rt Jamabandi was consented by all the cosharers but, there is no dispute, if any, with regard to respective possession of cosharers qua separate parcels of land. Plaintiff himself, in his plaint has admitted defendant to be one of cosharers in suit land. He has also admitted that Hari Kishan sold suit land to the defendant. Plaintiff averred in the plaint that entire land is in joint possession of the cosharers and land in Khasra No. 497 is much more valuable being abutting to the road side.

As per the plaintiff, defendant taking undue advantage of entry in revenue record attempted to occupy the land in Khasra No. 497 and to raise construction there upon. But, interestingly, in para-5 of the plaint, plaintiff himself claimed to be partly in possession of land comprising Khasra No. 497. If, averments contained in para-5 of the plaint are carefully read and analyzed, it clearly suggests that parties have been put to possession qua specific parcels of land and are enjoying their ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 17 possession qua the same. Plaintiff herself claims that specific plot bearing Khasra No. 497 is partly in her possession and in this regard, defendant applied for demarcation. Ext. PW-1/B, i.e. Jamabandi for the year 2009-10, clearly suggests that all the cosharers have been .

recorded in exclusive possession qua specific Khasra numbers.

Defendant has been shown to be in exclusive possession of Khasra No.

497. Perusal of Ext. D1 i.e. Jamabandi for the year 1984-85 clearly proves that Hari Kishan sold suit land bearing Khasra No. 497 of measuring 0-05-08 Hectares to the defendant and in this regard mutation No. 100 was attested and, as such, there is no force in the rt contentions of the learned counsel representing the plaintiff that change as reflected in Ext. PW-1/B i.e. Jamabandi for the year 2009-10 is without any basis. Admittedly, aforesaid entry in favour of defendant qua Khasra No. 497 was firstly made in the year 1984-85 vide Ext. D1 and, if at all plaintiff was aggrieved of the aforesaid entry, he ought to have filed appropriate proceedings as envisaged under law for the correction of revenue entry but in the instant case, there is no document available on record suggestive of the fact that plaintiff ever took any steps to get aforesaid revenue entry corrected, rather, he continued to enjoy exclusive possession of his share i.e. Khasra No. 450, 460. At this stage, it may be noticed that even in the earlier suit i.e. DW-1/A, plaintiff failed to lay challenge to the entries made in the Jamabandi for the year 1984-85 (Ext. D1), wherein admittedly, defendant was shown to have purchased land bearing Khasra No. 497, measuring 0-05-08 ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 18 Hectares. Even in these proceedings, plaintiff claimed that defendant be restrained from changing the nature of the joint land or any portion of land, till the same is partitioned between the parties. If plaintiff was aggrieved with the aforesaid entry made in the name of the defendant, .

that too specifically qua Khasra no. 497, he ought to have filed partition proceedings before appropriate authority, which have not been filed till date.

20. It also emerges from the revenue record that suit land was of demarcated twice, wherein defendant was found to be in possession of suit land. Perusal of demarcation reports (Ext. D3 and Ext. D4/A) rt clearly proves on record that defendant was in exclusive possession of the suit land bearing Khasra No. 497. Similarly, this Court sees no challenge, if any, to the demarcation report having been placed on record by the defendant in the shape of Exts. D3 and D4/A, which strengthens the case of the defendant that, after purchase of land from Hari Kishan, he was put to possession qua specific share i.e. Khasra No. 497. It is well settled that if co-owners are in possession of separate parcels of land after an arrangement consented to by all the owners, it is not open for any one to disturb said arrangement except by way of filing suit for partition. At the cost of repetition, it may be stated that, admittedly, there is no document available on record suggestive of the fact that arrangement/ agreement, if any, at any point of time, was entered between the parties regarding their possession qua separate parcels of land but pleadings adduced on record by the parties ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 19 specifically plaintiff as well as defendant, certainly suggest that all the cosharers were put to their exclusive possession qua their specific shares in the joint land and same could not be disturbed by either of the parties except by filing suit for partition. Plaintiff has nowhere disputed .

that Hari Kishan was not in exclusive possession of suit land, rather, plaintiff herself admitted that Hari Kishan sold his share to the defendant, meaning thereby that defendant was put in possession of share, which was originally owned by Hari Kishan.

21. Once, no challenge, if any, to the ownership of defendant is/was laid qua the suit land, this Court sees no illegality in the judgments and rt decrees passed by the Courts below, which are admittedly based upon correct appreciation of evidence adduced on record by the respective parties. Similarly, there are no pleadings that the defendant is claiming more than his share which he actually purchased from Hari Kishan and as such, learned Courts below rightly refused to grant equitable relief of injunction in favour of the plaintiff, more particularly, when defendant specifically proved on record by leading cogent and convincing evidence that he is/was in exclusive possession of suit land.

22. In support of his argument, Mr. Ajay Sharma relied upon following judgments:

              (i)     AIR 1984 (HP) 167
              (ii)    1991(2) SLC 222
              (iii)   1995(3) SLJ 1806
              (iv)    1995(1) SLJ 428




                                              ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP
                                         20

23. This court also carefully perused the case law pressed into service by Mr. Ajay Sharma.

24. There cannot be any quarrel with the proposition of law that whenever there is any conflict between the revenue entries, it is the .

later entry which must prevail. It is also settled law that presumption of truth is attached to the later entries, but the same is rebuttable one and it would stand rebutted by the fact that the alteration in the later entries was made un-authorisedly or mistakably, there being no material to of justify the change of entries.

25. But, in the instant case, as clearly emerges from documentary rt evidence i.e. Ext. D-1, Jamabandi for the year 1984-85 that Hari Kishan sold suit land bearing Khasra No. 497 measuring 0-05-08 Hectares to the defendant and in this regard, mutation No. 100 was attested in favour of the defendant, as a result of which, he was shown to be in exclusive ownership and possession of suit land, qua the share of Hari Kishan, and, as such, there is no force in the contentions of the learned counsel representing the plaintiff that the change as reflected in Ext. PW-1/B, Jamabandi for the year 2009-10 is without any basis. At the cost of repetition, it may be stated that entry, which was made in the year 1984-85 vide Ext. D-1, was made on the basis of mutation No. 100 attested by revenue authorities in favour of defendant and no proceedings, if any, and as envisaged under law, for correction of revenue entry, were initiated by the plaintiff, and, as such, defendant continued to be reflected in the revenue record thereafter i.e. Ext. PW-

::: Downloaded on - 15/04/2017 22:02:47 :::HCHP 21

1/B. Similarly, it is well settled law that till land is partitioned amongst the cosharers, all the cosharers enjoy possession on every inch of land and they are owners of the entire land but, in the instant case, as clearly emerges from the record, that all the cosharers have been recorded in .

exclusive possession qua specific Khasra numbers and they are enjoying their possession qua the same. Plaintiff herself has admitted defendant to be cosharer alongwith others qua their respective parcels of land. Defendant has successfully proved that he is in possession of of the suit land and learned Courts below have rightly not granted relief of injunction to the plaintiff.

26. Hence, this Court sees no illegality or infirmity in the judgments and decrees passed by the learned Courts below, which are upheld.

27. Substantial questions of law are answered accordingly.

28. Consequently, in view of the discussion above, there is no merit in the present appeal and the same is dismissed. Pending applications, if any, are disposed of. Interim directions, if any, are also vacated.

(Sandeep Sharma) Judge March 21, 2017 (Vikrant) ::: Downloaded on - 15/04/2017 22:02:47 :::HCHP

Unlock Advanced Research with PRISMAI

Himachal Pradesh High Court