Jammu & Kashmir High Court
Kishori Lal And Ors. vs Chaman Lal And Ors. on 17 November, 2006
Equivalent citations: 2007(3)JKJ133
JUDGMENT Hakim Imtiyaz Hussain, J.
1. This Civil Second Appeal arises out of the judgment and decree of District Judge, Kathua, dated 31st of March, 1988, passed in Civil Appeal No. 45 of 1983, titled Madan Gopal and Ors. v. Gur Dei and Ors.
The facts relevant for the disposal of the present appeal are as under:
2. The dispute between the parties is over a piece of abadi deh land situate in Taraf Tajwal, Tehsil Kathua. The land belonged to one Kanshi Ram. Kanshi Ram had three sons namely Nathu Ram, Ram Rattan and Munshi Ram. On Kanshi Ram's death the land devolved upon his sons. Nathu Ram and Munshi Ram too have died.
Nathu Ram's son namely, Madan Gopal filed a suit for permanent injunction against his uncle Ram Rattan (D-1) and his cousins namely Tilak Ram (D-2) Kapil Dev (D-3) and Pushpa (D-4), children of Munshi Ram. He alleged that he and defendants-1 to 4 were the owners of Abadi deh land under Khasra No. 119 and 120 situate in Taraf Tajwal, Kathua. The land had an entrance and passage at Point CB' shown in the sketch plan appended with the plaint. Plaintiff's grievance was that defendant-1, who is co-sharer in the land in dispute along with plaintiff and defendants 2 to 4, was proposing to build shops on the land marked 4CB'. He has allowed defendant-5 namely Gur Prakash to install a sawing machine and electric power was being requisitioned to work it at spot market A' shown in the site plan, which action, according to the plaintiff, was illegal being against the wishes of other co-sharers. The plaintiff further alleged that defendant-1 had no right to alter the position on spot by constructing shops or raising other structures on spot CB' and allowing defendant-5 to work and install sawing machine on the suit land. After some time the plaintiff filed another civil suit against the defendants on the same subject matter. The second suit was filed by the plaintiff seeking permanent injunction restraining the defendants from changing the nature of the suit land or raising any construction or transferring the same to the detriment of the plaintiff.
3. The plaintiff, thus contended that defendant-1, Ram Rattan was blocking the passage to the property at point market "CB' shown in the site plan annexed with the plaint and was going to raise construction on the land. He, therefore, prayed for a decree of permanent injunction restraining the defendants from blocking the passage and also restraining him from installing a Saw Machine on the land.
4. Defendants resisted the plaintiffs suits on the ground that he had no locus stand to file it, as he was not in possession of the property in dispute. According to them, the defendants and his sons were the owners of the land as they were in possession of it for more than 12 years. Defendant-5 alleged that he had taken the premises on rent @ Rs. 100 per month under a Rent Deed executed on 13th of May, 1968 and since then he is running his business on the land.
5. The trial Court framed as many as nine issues in the case. After taking the evidence led by the parties, the trial Court disposed of both the suits by a common judgment on 11th of April, 1983. The trial Court dismissed both the suits holding that the plaintiff was not in possession of the suit land and that it was established that on the date of institution of the suit property, the same was joint, so the plaintiff had no cause of action to file the suits.
6. On an appeal filed by the plaintiff, the 1st Appellate Court (District Judge, Kathua) allowed the same and set aside the judgment and decree passed by the trial Court no the ground that the trial Court had not properly appreciated the issue raised in the case and that the case has been dealt with by the trial Court in a slip shod manner. The real question in controversy between the parties, according to the 1st Appellate Court, was whether defendant-1 was going to construct the shops on the suit land and defendant-5 making preparation to install a saw machine over a portion of the suit property in connivance with defendant-1. The 1st Appellate Court found that the trial Court had not adopted a correct approach while deciding the issues and that as the property was joint, the defendant could not alter its nature. 1st Appellate Court, therefore, decreed the suit and granted the following reliefs in favour of the plaintiff:
i. Permanent injunction restraining defendant No. 1 to make any construction on the point marked CB' in the sketch plan attached with the plaint or on any other part of the suit land.
ii. Mandatory injunction directing defendant No. 1 to restore the entrance gate and passage of the suit land at point 'CB' as shown in sketch plan attached with the plaint.
iii. Mandatory injunction directing the defendant No. 5 to remove the structure raised over the suit land and the band saw machine installed therein.
7. Aggrieved of the findings returned by the 1st Appellate Court, the legal representatives of defendant-1 have filed this Civil Second Appeal on the following questions of law:
i) As to whether a finding regarding ownership in immoveable property claimed on the basis of a Sale Deed could be returned in the absence of any evidence to establish the due execution and registration of any such deed?
ii) As to whether the admissions allegedly made by a party in a previous suit could be utilized against the said party in a subsequent suit and in particular as to whether any such admission could be used against the party without confronting him with the same in terms of Section 145 of the Evidence Act?
iii) As to whether a plaint in a Civil Suit is a public document and in particular as to whether a plaint could be said to be a piece of evidence without formal proof otherwise required in terms of the provisions of the Act.
iv) As to whether the provisions of Section 11 (wrongly mentioned as
17) of the Common Land (Regulation) Act could be claimed by a person who had let out the land in question in abadi Deh for purposes of commercial use and construction and in particular what is the meaning of the work 'house' as appearing in the said section?
v) As to whether the construction made by a tenant lawfully inducted any possession by a co-owner before institution of the suit by another co-owner is rendered illegal or unauthorized and in particular as to whether the authority needed for such construction is from the landlord co-owner or from the entire body of the co-owners?
vi) As to whether a co-owner in exclusive possession of joint property, could be restrained from constructing upon a portion of the joint property in a suit for injunction and in particular as to whether Section 56 of the Specific Relief Act is barred to such suit in the face of and equally efficacious alternate remedy available to aggrieved co-owner by way of a suit for partition.
8. The appeal was considered by this Court by Mr. Justice V.K. Jhanji, Acting Chief Justice, (as his Lordships then was by means of judgment dated 26th of April, 2002, who maintained the judgment and decree of 1st Appellate Court with a slight modification. The learned Acting Chief Justice observed as under:
In view of the above, judgment and decree of the 1st Appellate Court is maintained only with regard to the decree of permanent injunction whereby defendant No. 1 is restrained from raising construction and for mandatory injunction whereby defendant No. 1 has been directed to restore the entrance gate and passage of the suit land at point 'CB' as shown in the sketch plan attached with property in dispute. However, the decree of the 1st Appellate Court whereby defendant No. 5 has been directed to remove the structure over the part of the suit property and also Band-Saw machine installed therein is set aside and the suit of the plaintiff to this extent shall stand dismissed.
9. The defendants felt aggrieved of the findings of the learned Single Judge. They went in appeal against the same to the Apex Court. The Court in SLP (C) No. 14675 of 2002 found that this Court had not framed two substantial questions of law, the first, on the application of Section 11 of the Common Land (Regulation) Act on the suit and second, regarding the fact as to whether injunction can be issued with regard to the property, which was not the subject matter of lis.
10. The Supreme Court, set aside the judgment of this Court and remitted the case to this Court for a fresh consideration after framing appropriate substantial questions of law in regard to the two points referred to in the judgment. The Court directed as under:
In the light of the above discussion, we remit the second appeal to the High Court for fresh consideration after framing appropriate substantial questions of law in regard to the two points referred to above and render its decision afresh as expeditiously as possible. The judgment of the High Court is set aside and the appeals are allowed to the extent indicated above.
In compliance to the directions of the Apex Court this Court on 7th of March, 2006, framed the following substantial questions of law:
i) Whether the appellants can claim the benefit of provisions of Section 11 of the Common Land (Regulations) Act, even though they had let out the land in question in abadi deh for commercial use?
ii) Whether any injunction can be issued with regard to the property which is not the subject matter of lis?
11. Heard. I have considered the matter. I have gone through the records of the trial Court as well as the judgment of the First Appellate Court.
Mr. L.K. Sharma, learned Counsel for the respondents at the outset stated that since the Apex Court has remitted the case asking this Court to frame the two questions of law raised by the appellants, it must confine itself only to these two questions framed by this Court on 7.3.2006 and may not go to questions raised in the memo of appeal. I don not find any force in the argument. Since this appeal was admitted to hearing on substantial questions of law formulated in the memo of appeal, these questions require disposal by this Court along with the two questions framed by the Court in compliance to the directions of the Supreme Court.
12. It is alleged by the plaintiff that the suit land was purchased by Kanshi Ram common ancestor of the plaintiff and the defendants 1 to 4 as far back as 3rd Baisakh, 1977 BK., through a registered sale deed. In the year 1947 A.D. a dispute arose about the land due to which a suit was filed by the plaintiff and the defendants Nos. 2 to 4 against one Chajju Ram arid another who disputed the title of the plaintiff and defendant No. 1 and father of defendants Nos. 2 to 4 holding them to be the owners of the land. The plaintiff has placed on file copy of the judgment of the District Judge in Civil Appeal No. 37 dated 1.3.2006. This judgment according to the plaintiff was confirmed by the High Court on 8th Phagan, 2007 in appeal No. 1 of 2007. The defendants contested this plea in the suit on which issues 1 and 2 was framed in the suit. Both these issues have been decided in favour of the plaintiff. 1st Appellate Court has referred to it and maintained the findings of the trial court. Appellant-Defendants are aggrieved of the same and have raised the questions of law No. 1 to 3 in this respect which are as under-
i) As to whether a finding regarding ownership in immoveable property claimed on the basis of a Sale Deed could be returned in the absence of any evidence to establish the due execution and registration of any such Deed?
ii) As to whether the admissions allegedly made by a party in a previous suit could be utilized against the said party in a subsequent suit and in particular as to whether any such admission could be used against the party without confronting him with the same in terms of Section 145 of the Evidence Act?
iii) As to whether a plaint in a Civil Suit is a Public document and in particular as to whether a plaint could be said to be a piece of evidence without formal proof otherwise required in terms of the provisions of the Act.
13. I find these questions do not need any consideration by this Court as issues 1 and 2 which cover all the three questions have already been decided by the trial Court in favour of the plaintiff and the appellant has not challenged this finding. 1st Appellate Court has in this behalf held as under:
Issue No. 1 and 2: Both these issues have been decided in favour of the plaintiff by the trial Court. The findings of the trial Court on these issues have not been challenged by any of the parties to this appeal. None of the parties raised any objection to the correctness of the findings of the trial Court on these issues at the time of arguments in this appeal. The findings on these issues are therefore confirmed.
14. Since the trial courts findings have remained unchallenged by the appellants before the 1st Appellate Court they cannot be allowed to raise these questions before this Court now.
Question iv. Raised in the memo of appeal is as under:
iv. As to whether the provisions of Section 11 (wrongly mentioned as Section 17) of the common land (Regulation) Act could be claimed by a person who had let out the land in question in abadi Deh for purposes of commercial use and construction and in particular what is the meaning of the word 'house' as appearing in the said section?
Connected with this question is question No. 1 framed by this Court on 7.3.2006 which is as under:
i) Whether the appellants claim the benefit of provisions of Section 11 of the Common Land (Regulation) Act, even though they had let out the land in question in abadi deli for commercial use?
15. On the plea raised by the defendant the trial Court has found that provisions of Common Lands Regulations Act 1956 apply to the case and that under Section 11 of the Act Ram Rattan was the exclusive owner of the 'abadi deh' land. The Court further found that joint title over the suit land came to an end with the coming into force of the said Act. According to the trial Court the parties became exclusive owners of that portion of the suit property which was in their respective possession after coming into force of the Act.
16. The 1st Appellate Court has found that the trial Court has misconstrued and misapplied the provisions of Section 11 of the Act. The Court found that it was abundantly clear from the provisions that it confers propriety rights in land situated in 'abadi dei" which is under the house owned by non-proprietor or non-tenant. The Court found that since no portion of the suit land was under any house the section was not applicable. The portion of the suit land in possession of defendant No. 5 as tenant was used by him not for residential purposes but for commercial purposes. The Court further found that the defendant No. 1 has not constructed any house over any portion of the suit property. The Court in this behalf observed as under:
It is abundantly clear from the aforesaid provisions of the Act that it confers proprietary rights in land situated in Abadi Deh and which is under the house owned by a non-proprietor or a non-tenant. There is no denial to the fact that the suit land is in Abadi Deh land and some portion of it is under occupation of Gur Parkash defendant No. 5 as tenant and he has installed a bandsaw over the same. No portion of the suit land is under any house. The portion of the suit land in possession of defendant No. 5 as tenant used by him not for residential purposes for commercial purposes. Defendant No. 1 has also not constructed any house over any portion of the suit property. So the provisions of Section 17(a) of the Act have no application of the suit land. That apart defendant No. 1 to 4 are the co-owners of the suit land where as Gur Parkash defendant No. 5 is tenant of some portion of the suit land. So none of the defendant is either non-proprietor or non-tenant. The right's in the land situated in Abadi Deh under the house owned by a non-proprietor or non-tenant shall vest in the said non-proprietor and non-tenant by virtue of provisions of Section 17 of the Act and not in the proprietor or tenant of the house or the land lord in the instant case as already stated above none of the defendants is either non-proprietor or non-tenant but on the other hand defendants No. 1 to 4 are the co-owners of the suit property and Defendant No. 5 is tenant over some portion of the same. The proprietary rights therefore cannot vest in them of the suit land under the provisions of Section 17 of the Act.
For the reasons give above the findings of trial Court under issue No. 3 are erroneous, against law, facts on the file. The fact remains that the suit property is jointly and undivided between plaintiff and defendant No. 1 now deceased represented by respondents No. 1 to 4 and defendant No. 2 to 4 as held in the early part of discussion under issue No. 3 Issue No. 3 is therefore, decided in favour of the plaintiff and against the defendants.
17. Section 11 of the Common Lands Regulation Act, 1956 reads as under:
11. Vesting of rights in non-proprietors and non-tenants and probation of encroachment on vacant land.--Notwithstanding anything to the contrary contained in other law for the time being in force, and notwithstanding any agreement, instrument, custom or usage or any decree or order of any Court or other authority-
(a) all rights, title and interests whatever in the land which is situated in the Abadi-Deh of village and which is under the house owned by a non-proprietor or a non-tenant shall, at the commencement of this Act, vest in the said non-proprietor or non-tenant.
(b) no person shall, except as provided in this Act, take possession of or otherwise encroach upon any land vacant at the commencement of this Act other than that used as a courtyard or compound of a house, a vegetable garden, a Sagzar or a Wani, which is included in the Abadi-Dehi of any village.
18. A perusal of the section would show that it applies only in cases of non-proprietor or non-tenant. Admittedly the parties do not fall within the definition of non-proprietor and non-tenant. 1st Appellate Court has in this behalf observed as under:
It is abundantly clear from the aforesaid provisions of the Act that it confers proprietary rights in land situated in Abadi Deli and which is under the house owned by a non-proprietor or a non-tenant. There is no denial to the fact that the suit land is in Abadi Deh land and some portion of it is under occupation of gur Parkash defendant No. 5 AS TENANT AND HE HAS INSTALLED A BANDSAW OVER THE SAME. No portion of the suit land is under any house. The portion of the suit land in possession of defendant No. 5 as tenant used by him not for residential purpose for commercial purposes. Defendant No. 1 has also not constructed any house over any portion of the suit property. So the provisions of Section 17 (a) of the Act have no application to the suit land. That apart defendant No. 1 to 4 are the co-owners of the suit land where as Gur Parkash defendant No. 5 is tenant of some portion of the suit land. So none of the defendant is either non-proprietor or non-tenant. The right's in the land situated in Abadi Deh under the house owned by a non-proprietor or non-tenant by virtue of provisions of Section 17 of the Act and not in the proprietor or tenant of the house or the land lord in the instant case as already stated above none of the defendants is either non-proprietor or non-tenant but on the other hand defendants No. 1 to 4 are the co-owners of the suit property and Defendant No. 5 is tenant over some portion of the same. The proprietary rights therefore, cannot best in them of the suit land under the provisions of Section 17 of the Act.
19. On consideration of the pleas raised, I find the Common Lands Regulation Act is not applicable to the present case at all. The Act is attracted only in cases of Common Lands'. The provisions are applicable where right of user over path ways and places is exercised by the inhabitants of the village. Such is not the case here as the issue arising appear to be a dispute between the two individuals over the user of a piece of land in a village. A similar situation arose in Sabir Dar v. Deputy Commissioner 1979 SLJ 223 where the Court held:
The expression 'Common Lands' has not been defined in the Act. The ordinary connotation of the expression in the places, such as a road, street, pathway, channel, drain etc. in a village over which the inhabitants of the village exercise common right of user. Such places are used for common or public purposes. According to the proviso to Section 3 of the Act right of user over path ways and places must be exercised by the inhabitants of the village for one year continuously at any time prior to the commencement of the J&K Common Lands (Regulation) Act, 1956. It is true that a dispute between the two individuals over the user of a place in a village cannot attract Section 4 of the Act, such private dispute may give rise to an action for casement....
20. In such circumstances, the Common Lands Act is not applicable to the facts of the case at all. Thus there appears due force in the conclusions arrived at by the 1st Appellate Court reproduced above. I do not find any ground to interfere with these findings. These questions are, therefore, decided accordingly.
Questions V & VI raised in the memo of appeal are as under:
v) As to whether the construction made by a-tenant lawfully inducted any possession by a co-owner before institution of the suit by another co-owner is rendered illegal or unauthorized and in particular as to whether the authority needed for such construction is from the landlord co-owner or from the entire body of the co-owners?
vi) As to whether a co-owner in exclusive possession of joint property could be restrained from constructing upon a portion of the joint property in a suit for injunction and in particular as to whether Section 56 of the Specific Relief Act is barred to such suit in the face of and equally efficacious alternate remedy available to aggrieved co-owner by way of a suit for partition.
21. On issue No. 6 the trial Court has observed as under:
It is admitted plaint that plaintiff is not in possession of the suit land. It has also been held in the previous issues that it is not proved that on the date of institution of the suit property was joint. So the plaintiff has no cause of action. Even otherwise also the plaintiff would not have any cause of action even of the jointness of the suit property was proved, because the parties are in possession of the properties separately since long before the institution of the suit and even the plaintiff has created as separate tenancy and is the special damages which he has failed to do so. Here I am supported in my view of AIR 1935 Lahore 250, "co-sharer encroachment made by the proprietors suit for mandatory injunction by the plaintiffs must prove special damages and shown that defendant has taken up more than that to which he would be entitled and partition suit AIR 1938 Lahore 779." Injunction suit for joint owners certiaincite, (sic) joint properties of parties used as lane leading to property of one of them, one party ruling over party of lanes adjoining his property other party is ordinarily entitled to view for injunction for removal of structure. He is no, however, so entitled to sue where he makes similar use of lanes appoint to his own property so long as the over structure remains. He is only entitled to damages.
AIR 1962 Orissa, "there is no statutory law in India governing the relation among the co-sharers enter about the common lane and the matter must be regulated by the rules of justice equity and good conscience.
While considering a question of injunction each case must be decided upon its own particular facts and it would be left to the Court to exercise its judicial discretion upon proof of circumstances showing on which side the balance of convenience lies.
The learned Counsel for the plaintiff has, in this connection, referred to, AIR 1969 Goa 90, "or 399 OR I-Co-owners change is user. Aggrieved co-owner comes in the Court with due promptness injunction can be decreed."
The ratio descendie of this authority is also the defendants had, since long created the tenancy and defendant No. 5 was running his business of wood and there is no evidence that the defendant No. 5 installed the saw mill after the suit. This issue No. 6 is proved and decided accordingly.
22. While dealing with the findings of the trial Court on this issue the 1st Appellate Court has observed as under:
The trial Court has not adopted correct approach while deciding this issue. The suit property comprised of survey No. 119 and 120. It has been held under issue No. 3 that the property is joint and undivided between plaintiff appellant and respondent Nos. 1 to 7. It has also been held that a small portion of the land in question is in possession of the plaintiff through his tenant. The remaining bulk of the land is in possession of the defendant No. 1. Some portion of it, is in his possession though his tenant and the remaining portion in his direct possession. So it cannot be said that plaintiff is not in possession of any portion of the land bearing survey No. 119 and 120. That apart the possession of defendant No. 1 now deceased was as co-owner and the same shall be deemed to be in possession for the sake of the arguments that whole of the land bearing survey No. 119 and 120 was in possession of defendant No. 1 at the time of institution of the suit that fact will not make the suit of the plaintiff incompetent because he has filed the suit on the basis of he being co-owner alongwith defendants and that the defendants have no right to change the structure and usurer of the property by raising any construction or installing the band saw machine etc. The fact whether the plaintiff is in possession or not of the suit property would hardly matter as one co-owner has the right to prevent the other co-owners from changing the condition and usurer of the joint property in respect of the fact whether he is in possession or not.
As already stated earlier that defendant No. 1 baring a small portion of the suit land is in possession of the whole of the suit land. This is definitely much more than his share in the joint property. When such is the case the other co-owners have no right to restrain him from usurping the whole of the joint property by raising construction thereupon. The authorities cited by the trial Court does not support the conclusion arrived at by the trial court. It is settled law that a co-owner who is in sole occupation of the joint property is not entitled to change the nature of the portion or use the property in the mode different from that in which it was previously used. The suit land was previously an open land, the defendants are not entitled to change the nature and usurer of the same.
23. The land in question is 'abadi deh' land. In a village land is mainly used for agricultural purposes or for purposes subservient to agriculture, for pasture, for village common use or for residential purposes which in revenue parlance is called as village abadi or "abadi deh'. For the purpose of certain enactments though sites of buildings situated on the agricultural land are included in the definition of land but the sites of village abadi do not fall within the definition. Thus "land" under the Land Revenue Act means land which is occupied or has been let for agricultural purpose or for purposes subservient to agriculture or for pasture and includes the site of buildings and other structures situated in such land, trees standing on such lands, areas covered by or fields floating over water, and sites of jandars and gharats. The land however, does not include village abadi. Similarly under the Agrarian Reforms Act Mand' means land, which was occupied, or was let, for agricultural purposes or for purposes subservient to agriculture or for pasture in kharif, 1971 and includes structures on such land used for purposes connected with agriculture, areas covered by, or fields floating over, water, forest lands and wooden wastes, trees standing on land. It however, does not include site of a building or village abadi.
24. The abadi deh is the inhabited village site consisting of land on which houses of the villagers usually exists. It includes streets, play grounds, schools, drinking wells, ponds, lawns, dharmasalsas and sarais. Just as in Shamilat deh so also in the abadi deh the proprietary rights are, as a rule, vested in the proprietary body.
25. Though a proprietor of the village (malikana-deh) has got full rights over the dwelling house on abadi deh but co-sharers in the exclusive possession of a site in the abadi could not use it in a manner which altered its joint character or was otherwise inconsistent with the rights of the other co-sharers. These sites are usually recorded as the common property of the community
26. The general custom is that a villager does not own the abadi deh site on which he constructed his house; he is only entitled to the material. The site belongs to the proprietary body.
27. The abadi of the village being joint property was liable to partition, but the portions occupied by houses of the villagers or used for public purposes would necessarily have to be excluded from partition. In Manji v. Ghulam Mohammad AIR 1921 Lah. 157 it was held that where a plot of abadi land was taken exclusive possession of by the defendants, two of the proprietors of the village, who asserted their exclusive title and denied the title of the other proprietors, a suit for joint possession by other proprietors was competent, and that a Civil Court, but not a Revenue Officer or Revenue Court, had jurisdiction to partition the abadi land. The matter is thus to be seen form the angle as to what are the rights of the co-sharers in an abadi deh land. Notwithstanding the nature of interest/rights of the proprietors over abadi deh land, the general principles giving the rights of co-sharers would be applicable in such cases. All co-sharers will have a common interest in the abadi deh property and a co-sharer cannot be allowed to appropriate to himself land, in which his co-sharers have an interest and he cannot be allowed to build upon it in such a way which is likely to adversely effect the interests of other co-sharers over the joint land.
28. Such being the position I find the 1st Appellate Court has arrived at a just conclusion on the issues raised in the suit and the appeal. The land belonged to Kansh Ram and on his death devolved on his sons being findings of fact with concurrent findings of both the courts below cannot be interfered with. It is also established from evidence, as has been found by the 1st Appellate Court that Madan Gopal has given a portion of the land on lease on one Som Ram, similarly defendant No. 1 had given another potion of the land to defendant No. 5 on rent. Defendant No. 5 has admittedly installed Sawing Machine on this piece of land. It is also held by the 1st Appellate Court that at point "CB1 shown in the site plan attached with the plaint, there exists a passage. The Court further found that the defendants had without the consent of other sharers raised construction over the passage which he had no right to do. The Court has, therefore, restrained defendant No. 1 from raising any construction and to restore the passage on the suit land at the said point. The Court has in this behalf observed as under"
There is no other evidence adduced by the defendants to rebut the evidence of the plaintiff regarding demolition of entrance gage and passage to the suit property. Diwan Chand legal heir of Ram Rattan defendant No. 1 who was substitute along with other heirs in place of Ram Rattan on his death has appeared in the witness box. He has nowhere stated that the entrance gate and the passage to the said land was not demolished by defendant No. l. He has also nowhere stated that there existed no such entrance gage and passage as asserted by the plaintiff and shown at Point CB in the plan attached with the plaint. The defendant No. 1 in his written statement has no doubt asserted that there was no entrance gate and passage at all at the point as shown in the plan by the plaintiff. But mere balled assertion or denial of existence of gate and passage is not sufficient to disprove/rebut the evidence of the plaintiff.
In view of the aforesaid discussion, I am of the opinion that the un-re-butted testimony of the plaintiff is sufficient to prove issue No. 4 as defendant No. 1 has no right to cause damage to the joint property. Issue No. 4 is therefore, held proved and accordingly decided in favour of the plaintiff against the defendants.
The Court further finds:
As already stated earlier that defendant No. 1 baring a small portion of a suit land is in possession of the whole of the suit land. There is definitely much more than his share in the joint property. When such is the case the other co-owners have the right to restrain him from usurping the whole of the joint property by raising construction thereupon The authorities cited by the trial Court does not support the conclusion arrived at by the trial court. It is settled law that a co-owner who is sole in sole occupation of the joint property is entitled to change the nature of the portion or use the property in the mode different from that in which it was previously used. The suit land was previously an open land, the defendants are not entitled to change the nature and usurer of the same.
29. I have gone through the evidence. I find the 1st Appellate Court has on proper appreciation of the evidence come to a right conclusion on the issue which does not need any interference.
30. It is being contended that the construction is allegedly made on Survey No. 118 and not on survey No. 119 and 120 which is the subject matter of the suit. Survey No. 118 has not been mentioned in the plaint and thus it does not fall under the disputed land as described in the plaint. On this a specific question of law was framed by the Court as under:
ii) As to whether the admissions allegedly made by a party in a previous suit could be utilized against the said party in a subsequent suit and in particular as to whether any such admission could be used against the party without confronting him with the same in terms of Section 145 of the Evidence Act?
31. In support of its pleas, reliance is being placed by the defendants on the Commissioner's report. The 1st Appellate Court has while commenting upon the Commissioner's report said:
...The report of said Commissioner has nothing to do with the point in issue under issue No. 4. He was appointed simply to go on spot and find out as to whether the construction of the shops has been commenced on survey No. 118 or Survey No. 119 and 120. He was appointed as commissioner under the directions of the High Court to decide the question of temporary injunction as the plea of plaintiff was that defendant No. 1 has started construction of shops in the suit property which fact was denied by defendant No. 1 who in turn has asserted that he has commenced the construction of the shops over Survey No. 118. In this view of the matter the report and evidence of the Commissioner has nothing to do with the question whether defendant No. 1 has demolished the entrance and passage of suit property or not. The trial Court has absolutely given no reasons for holding that issue No. 4 is not proved.
I would now take up the evidence of the parties to prove and disprove this issue. There is solitary statement of the plaintiff to prove this issue. He has categorically stated that the passage to the suit property was through survey No. 118. The entrance gate to the suit property was demolished by defendant No. 1 and thereafter they started construction of shops thereby blocking the passage in survey No. 119 and 120 in the Khasra girdawari. This witness has however, admitted that shops have been constructed in survey No. 118 and 120, but there is no entry about the same in the revenue record. When he was asked as to why the Girdawari entry has not been marked according to position obtaining on spot, he could not give any satisfactory explanation. He"has further stated that entry should be made according to the position of the land but the entries in this were not so made. On the other hand entries are made as per the old entries. In other words the old entry was repeated from year to year despite the fact that the suit land's position has undergone a great change as some construction was raised there and Bandsaw machine instilled since long. It shows that no revenue official has over gone on spot for recording the entries in the khasra Girdawari from time to time. When such is the case no reliance can be placed on such a revenue record. So the evidence of the patwari based on revenue record which has not been prepared correctly regarding the position and situation of the land in question cannot be deemed sufficient to rebut the statement on oath of the plaintiff.
32. On going through the plaint itself I find unnecessary controversy has been raised by the defendant's on passage point 'CB'. Since the plaintiff has mentioned only survey No. 119 and 120 in the plaint, the defendants, on the basis of Commissioner's report, contends that the alleged passage and the entrance point falls under survey No. H8 as such it will not come within the suit property and the courts will have no jurisdiction to adjudicate upon it.
33. I do not find any force in the contentions of the defendants in this behalf. Perusal of the plaint would show that the plaintiff has specifically made a mention of the same in the plain and has also appended a detailed site plan with the plaint. Thus the plaintiff was very specific about his case and this fact was known even to the defendants too who have contested with it in the written statement. In such circumstances I find non-mention of survey No. 118 in the plaint was not so material at all. Under Order 7 rule 3 CPC where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. The object is that the defendant must know in respect of which property the plaintiff seeks a relief so that he can explain his stand on the same. This also enables the Court to execute the decree in respect of the said property in the event a decree is passed in the suit in favour of the plaintiff. If the property is identified by giving its description in the plaint and in support a detailed site plan of it is filed along with the plaint, it would amount to sufficient compliance of the provisions of Order 7 Rule 3 CPC and mere non-mention of the survey No. would not effect the relief asked for by the plaintiff.
34. The question is, therefore, answered accordingly.
While I find no ground to interfere with the ist Appellate Court Judgment so far it relates to grant of relief (i) and (ii), I find the order of the Court directing the defendant No. 1 by way of mandatory injunction to remove the structure raised over the suit land and the band saw machine installed therein relief (iii) cannot stand for the reason that the defendant No. 5 admittedly raised the structure before the filing of the suit. He is claiming under defendant No. 1 who is co-sharer in the land like the plaintiff. The plaintiff too has done the same thing by inducting a tenant in a portion of the suit land. One who seeks equity must come with clean hands. If the plaintiff has inducted a tenant on a portion of the suit land he cannot deny a similar benefit of enjoyment of the land to defendant No. 1 In any case the co-sharer have a right to asked for the partition. One cannot know in whose share the said portion under the tenancy of defendant No. 5 will fall. Whatever rights defendant No. 5 has got in the land being a tenant of defendant No. 1 are subject to the rights of the other co-sharers at the time of partition of the property.
35. The order of Ist Appellate Court to the extent of relief (iii) cannot, therefore, stand.
36. Under these circumstances the judgment and decree of the 1st Appellate Court is partially upheld to the extent of reliefs (i) and (ii) granted by it to the plaintiff. The judgment and decree so far it relates to relief (iii) is set aside.
37. Order accordingly. There shall be no order as to costs. This judgment disposes of CSA No. 19 and 20 of 1988 only. CIA No. 5 of 1992 be listed separately.