Himachal Pradesh High Court
Sh. Shyama Nand vs Sh. Rama Nand & Ors on 30 October, 2020
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 203 of 2019
Decided on: 30.10.2020
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Sh. Shyama Nand ......Appellant.
Versus
Sh. Rama Nand & ors. .....Respondents.
Coram
Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? 1
For the plaintiff : Mr. R.K Bawa, Senior Advocate with
Mr. Prashant K. Sharma, Advocate.
For the respondents : Mr. V.S. Chauhan, Senior Advocate
with Mr. Ajay Singh Kashyap,
Advocate.
( Through Video Conference)
Jyotsna Rewal Dua, Judge (Oral)
Having suffered two concurrent judgments and decrees passed by learned Courts below, the plaintiff has preferred instant second appeal asserting that substantial questions of law are involved in the case.
2. Civil suit for permanent prohibitory injunction was instituted by the plaintiff against the defendants in respect of 1 Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 03/11/2020 20:18:05 :::HCHP 2 land comprised in Khasra Nos. 274, 275 and 276, situated at Chak Satog, Pargana Dharech, Tehsil Theog, District Shimla.
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Plaintiff claimed that suit land was co-owned by him alongwith defendant No. 1. Plaintiff pleaded that he was in exclusive possession over these three Khasra numbers. He had constructed a two storeyed house over Khasra No. 275 about 35 years ago and was in separate and peaceful possession of the r to same, however, in the revenue record Khasra No. 275 was reflected as 'Bakhal Abbal'. It was further claimed that defendants were interfering with the possession of the plaintiff over the suit land and were causing damages to the house of the plaintiff existing over Khasra No. 275, hence civil suit was preferred seeking injunction against the defendants.
In the written statement filed on behalf of defendants it was admitted that the suit land was co-owned by the parties and plaintiff was in exclusive possession over Khasra No. 274. However, plaintiff's claim of his being in exclusive possession over the land comprised in Khasra Nos. 275 and 276 was denied. Defendants pleaded that Khasra Nos. 275 and 276 were in their exclusive possession on the spot and recorded as such in the revenue record. Defendant No. 1 claimed that his house was standing over Khasra No. 277, which was in exclusive possession of the defendants. It was further asserted that the house of the plaintiff actually exists over Khasra Nos. 504, 505 and 657 at ::: Downloaded on - 03/11/2020 20:18:05 :::HCHP 3 Chak Satog. It was denied that plaintiff had constructed his two storeyed house over Khasra No. 275 or that the plaintiff was in .
possession over Khasra No. 275.
2(ii) The parties led evidence in support of their respective pleadings. After appreciating the pleadings and the oral as well as documentary evidence, so produced by the parties, learned trial Court dismissed the suit filed by the plaintiff vide judgment and decree dated 26.11.2016. This judgment and decree has been upheld by learned Ist Appellate Court on 13.3.2019.
Aggrieved, instant second appeal has been preferred by the plaintiff.
3. I have heard learned Senior Counsel representing the appellant as well as the respondents and gone through the case file. What comes out from the record is that plaintiff though had instituted the suit simplicitor for permanent prohibitory injunction against the defendants pleading that he was in exclusive possession over Khasra Numbers 274, 275 and 276 by specifically asserting that his two storeyed house existed over Khasra No. 275, however, he could not prove existence of his house over Khasra No. 275 or that he was in possession over Khasra No. 275. Revenue record Ex. D1 Jamabandi for the year 2007-2008 and Ex.D3 jamabandi for the year 2012-13 reflect nature of Khasra No. 275 as Bakhal Abbal and in possession of defendant No. 1. This falsifies the plea taken by the plaintiff. ::: Downloaded on - 03/11/2020 20:18:05 :::HCHP 4 Plaintiff has himself admitted during cross-examination that his house is situated over Khasra Nos. 504, 505 and 667. Despite .
being fully aware that the revenue entires did not reflect the position as projected by him in the plaint, the plaintiff did not challenge the revenue entries. The revenue record i.e. jamabandi for the year 2007-2008 reflect that plaintiff and defendant No. 1 along with others are though co-owners over the suit land, however, out of suit land, it is only Khasra No. 274 which is recorded in possession of the plaintiff. Khasra Nos. 275 and 276 are recorded in possession of defendant No. 1. Plaintiff has also admitted during cross-examination that though there is no written document of partition of joint land between the parties but the parties were occupying separate parcels of joint land and their separate possession has been recorded as such during settlement.
Here it is apposite to observe that it is the stand of the defendant No. 1 that Khasra No. 275 is vacant land and is in his possession, which is situated opposite to his house constructed over Khasra No. 277. He has also asserted his possession over Khasra No. 275. This factual stand is also supported by the revenue record. While appearing in the witness box plaintiff himself thrashed out his own pleaded case by admitting that his house is situated over Khasra Nos. 504, 505 and 667. He thereafter expressed his ignorance about the ::: Downloaded on - 03/11/2020 20:18:05 :::HCHP 5 Khasra number on which his house was situated. This later retraction during his cross-examination will not come to his .
rescue as immediately thereafter he again admitted that " ;g Bhd gS fd tSls&tSls caVokjk gqvk gS] oSls gh cUnkscLr esa ik;k x;k gS A"
Plaintiff, therefore, has clearly admitted that though there is no written instrument of partition effected between the co-owners, however, their possession over the joint land by way of arrangement has been reflected as such, on the basis of spot position, in the settlement record. It is this possession which has found its way in the revenue record. Plaintiff has not challenged the revenue entries, in particular the entry pertaining to Khasra No. 275 reflecting the same as Bhakal Abbal in exclusive possession of defendant No. 1, despite being aware of them.
Defendants in the written statement have admitted plaintiff to be in exclusive possession over Khasra No. 274 which fact is also supported by the revenue record. Similarly, plaintiff has also admitted defendant No. 1 to be in exclusive possession over Khasra No. 277 and further that over this Khasra number house of defendant No. 1 is located.
All these facts unequivocally reflect that parties had since long effected a mutual arrangement and on that basis are occupying separate settled possession over different portions of the joint land. Their separate exclusive possession over different ::: Downloaded on - 03/11/2020 20:18:05 :::HCHP 6 portions of joint land has been recorded in the revenue record.
The plaintiff had practically admitted the correctness of the .
revenue record in his cross-examination. There is no challenge to the record by the plaintiff. Plaintiff has admittedly already raised his construction over Khasra Nos. 504, 505 and 667. In the facts of the case it is not open to anyone to disturb the arrangement except by filing a suit for partition. Since co-
sharers are in settled possession over certain respective portions, therefore, mere construction on the joint land will even otherwise not amount to ouster of any co-owner. Learned Courts below have rightly appreciated the pleadings and evidence adduced by the parties and justly dismissed the civil suit for inunction filed by the plaintiff with respect to Khasra Nos. 274, 275 and 276.
Learned Senior Counsel appearing for the appellant/plaintiff placing reliance upon 2003 AIR (HP) 87, titled Beli Ram versus Mela Ram vehemently argued that in the facts of the case, learned Ist Appellate Court before whom the plaintiff had moved an application under Order 26 Rule 9 of Code of Civil Procedure for appointment of Local Commissioner, was bound in law to allow the application and appoint the local commissioner to identify and determine the Khasra number over which the house of plaintiff was located. A perusal of record reveals that learned Ist Appellate Court vide a separate detailed order had ::: Downloaded on - 03/11/2020 20:18:05 :::HCHP 7 rejected the application moved by the plaintiff under Order 26 Rule 9 CPC. In the facts and circumstances of the case when .
plaintiff had himself admitted during cross examination that his house was located over Khasra Nos. 504, 505 and 667 as agaisnt pleaded Khasra No. 275 and when plaintiff has also admitted during cross-examination that possession of parties over respective portions of suit land was recorded during settlement as their settled possession arrived by way of arrangement and when the unchallenged revenue document depict the nature of Khasra No. 275 as 'Bhakal Abbal' and 'in exclusive possession of defendant No. 1 then there was no necessity for the learned Ist Appellate Court to allow the application under Order 26 Rule 9 CPC. The provision is not meant to create evidence in favour of a party. The judgments cited by learned Senior Counsel are on the basis of facts of respective cases. Each case has to be considered on the basis of its facts. In the instant case dismissal of application under Order 26 Rule 9 CPC was on the basis of facts and inconsonance with settled legal position, more so when the facts were explicit on the face of record and admitted as such by the plaintiff. It was for the plaintiff to prove his pleaded case, which he miserably failed to do so.
No question of law much less substantial one is involved in the instant second appeal. There is no infirmity with ::: Downloaded on - 03/11/2020 20:18:05 :::HCHP 8 the impugned judgments and decrees concurrently passed by the two learned Courts below dismissing the suit for injunction .
filed by the plaintiff. Hence, there is no merit in the instant second appeal, which is accordingly dismissed, so also the pending application(s), if any.
Jyotsna Rewal Dua Judge.
October 30, 2020,
( vs) r
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