Himachal Pradesh High Court
Suresh Kumar & Anr vs Pushpa Devi & Ors on 10 April, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.13/2022 Decided on: 10.04.2023 .
Suresh Kumar & Anr. .....Appellants
Versus
Pushpa Devi & Ors. ......Respondents
.......................................................................................... Coram The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 For the appellant: Mr. Sunil Mohan Goel, Advocate alongwith Mr. Dinesh Thakur, Advocate.
For respondents: Mr. Sanket Sankhayan, Advocate, for respondents No.1 and 2(i).
Jyotsna Rewal Dua, J CMP No. 16177/2021 has been jointly moved by the appellants (Suresh Kumar, Naresh Kumar), as well as respondents No.1, 3 and 4 viz. Pushpa Devi, Anjana and Madhu Bala, respectively. In terms of this application moved under Order 23 Rule 3 read with Section 151 of the Code of Civil Procedure, prayer has been made for allowing the appeal by modifying the judgments and decrees passed by both the learned Courts below, in view of the following compromise arrived at between the parties:-
"1. That the above titled appeal has not been registered since the application for condonation of delay for filing the appeal is pending adjudication.1
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 11/04/2023 20:35:43 :::CIS 2
2. That the appellant and the respondent during the pendency of the appeal have entered into out of Court settlement/agreement.
3. That the terms of the settlement which have been agreed into .
between appeilants and respondent No. 1, and respondent No. 3 & 4 are as under:
i) That in terms of the judgment passed by the learned District Judge, Bilaspur in Civil Appeal No. 43/13 of 2015 dated 18.6.2016 in case titled Suresh Kumar & Anr. Vs. Pushpa Devi & Ors., the Hon'ble Appellate Court had partly allowed the appeal and the relief clause of the judgment was modified which read as under:-
"It is declared that the plaintiff is co-owner in possession of the suit land comprised in Khasra Nos. 745/265, 751/270, 936/755, 937/755, 420, 425, 455, 479, 519, r Khata / Khatoni No. 55/61, to the extent of 1/4 share which is now comprised in Khata/Khatoni No. 61/69, Khasra Nos, 936/755, 1008/937/755, 745/265, 751/270, 420, 519 land measuring 22-3 bighas, and Khata/Khatoni No. 61/69/1, Khasra Nos. 455, 479 land measuring 0.13 Bighas, all land situated at Village and Post Office, Kandraur, Tehsil Sadar, District Bilaspur.
H.P. and Sanjay Kumar son of Shri Nikku Ram, proforma defendant, Smt. Anjna and Madhu Bala, proforma defendants are also having 1/4 share each. The share of Sanjay Kumar son of Shri Nikku Ram is subject to deduction of 10 Biswas of land which is sold by him in favour of defendants No.1 and 2. The defendants No. 1 and 2 are also co-owner of the suit land to the extent of 10 biswas in Khata which is subject to partition. The suit of the plaintiff is also decreed whereby permanent prohibitory injunction is passed against the defendants restraining them from causing interference in the ownership and possession of the plaintiff qua the suit land till the suit land remained joint."
In terms of the judgment passed by the learned District Judge, Bilaspur the appellants have been held entitled ::: Downloaded on - 11/04/2023 20:35:43 :::CIS 3 for 10 biswas of land sold in their favour by the father of respondents No. 2 and the appellants had been held to be co-owners of the suit land to the extent of 10 biswas .
of land subject to partition. The appellant No. 1 & 2 and the respondent No. 1 and respondent No. 3 & 4 who are basically the contesting respondents have agreed that in lieu of some monetary compensation to be paid to them they are ready and willing to permit the appellants to remain in possession of the land to the extent of 4 shares in Khasra No. 455 and 479 as given in the jamabandi 2001-2002 which is in the exclusive possession of appellant No. 1 & 2 and who have carried out improvements also over the said land.
ii) It has been further agreed between appellant No. 1 & 2 and respondent No. 1 and respondent 3 & 4 that the judgment passed by both the Courts below may kindly be modified to the extent that the appellants may be declared as owner in exclusive possession of 10 biswas of land situated in Khasra No. 455 and 479 as sold to them vide sale deed dated 23.4.1999 by deceased respondent No. 2 Sh. Sanjay Kumar.
4. That the terms of compromise as enumerated in para 3 of the present application may be read as compromise between the parties since no separate compromise has been prepared and the terms agreed between the parties have been enumerated in para 3 of the application. It is further submitted that this compromise may be read as a part and parcel of the decree sheet.
It is, therefore, most respectfully prayed that in view of the averments made hereinabove the present appeal may kindly be allowed in view of the compromise entered into between the parties as enumerated in para 3 of the application as sub-para 3 (1) & (ii), and the judgment and decrees passed by both the courts below may be modified to that extent, in the interest of justice. Any other relief which this Hon'ble Court may deem fit in ::: Downloaded on - 11/04/2023 20:35:43 :::CIS 4 the facts and circumstances of the case may be granted in favour of the applicants.
Place: Applicants/Appellants
Dated:28-2-21 Through
.
Dinesh Thakur,
Advocate.
Applicants/Appellants
Through
Sanket Sankhyan
Advocate."
2(i) The suit was instituted by respondent No.1 (Pushpa
Devi). The appellants were defendants No.1 and 2 therein. Sh.
Sanjay Kumar S/o Sh. Nikku (deceased) was sued through his legal representatives viz. (i) Shiya & (ii) Tamana. Smt. Anjana and Smt. Madhu Bala respondents No.3 and 4 herein were proforma defendants No.4 and 5 in the suit. The suit was instituted for declaration to the effect that plaintiff is co-owner in joint possession of the land to the extent of ¼ share comprised in Khasra Nos.
745/265, 751/270, 936/755, 937/755, 420, 425, 455, 479 & 519, Khata/Khatoni No. 55/61, land measuring 23-11 bighas, situated in Village and P.O. Kandraur, Tehsil Sadar, District Bilaspur, H.P., which is now comprised in Khata/Khatoni No. 61/69, Khasra Nos, 936/755, 1008/937/755, 745/265, 751/270, 420, & 519, land measuring 22-3 bighas, and Khata/Khatoni No. 61/69/1, Khasra Nos. 455, 479 land measuring 0.13 Bighas situated in Village and Post Office, Kandraur, Tehsil Sadar, District Bilaspur. H.P. and the entry in favour of defenant Nos.1 and 2 exclusively of the land ::: Downloaded on - 11/04/2023 20:35:43 :::CIS 5 measuring 0-13 bigha is illegal, null and void. The plaintiff has also prayed for the relief of permanent prohibitory injunction qua the suit .
land.
2(ii) The appellants (defendants No.1 and 2) took the stand that they had purchased 10 biswas of land out of Khasra Nos. 455 and 479 vide sale deed dated 23.04.1999 from defendant No.3 (deceased Sh. Sanjay Kumar). They further submitted that the possession of this 10 biswas of land was delivered to them by defendant No.3 and mutation in this regard was also attested on 20.05.1999. The appellants putforth the stand that they were owners in possession of 10 biswas of suit land comprised in Khasra Nos.455 and 479 and that plaintiff- Pusha Devi never remained in possession of Khasra Nos. 455 and 479.
2(iii) The stand taken by the appellants (defendants No.1 and 2) was supported by defendant No.3 (Sanjay Kumar), who inter alia asserted that he was bona fide owner in possession of the suit land measuring 0-13 bigha but had sold 10 biswas of the land to defendants No.1 and 2 (present appellants).
2(iv) Learned Trial Court vide its judgment and decree dated 23.09.2015 partly decreed the suit. The plaintiff was declared to be co-owner of the suit land comprised in Khasra No. 745/265, 751/270, 936/755, 420, 425, 479 & 519, Khata Khatoni No. 55/61, land measuring 23-11 bighas, situated in Village and P.O. Kandraur, ::: Downloaded on - 11/04/2023 20:35:43 :::CIS 6 Tehsil Sadar, District Bilaspur, H.P., which is now comprised in Khata/Khatoni No. 61/69, Khasra Nos. 936/755, 1008/937/755, .
745/265, 751/270, 420 & 519, land measuring 22-3 bighas, and Khata/Khatoni No. 61/69/1, Khasra Nos. 455, 479 land measuring 0.13 Bighas situated in Village and Post Office, Kandraur, Tehsil Sadar, District Bilaspur. H.P. to the extent of ¼ share.
2(v) Defendants No.1 and 2 (present appellants) assailed the aforesaid judgment and decree before the learned First Appellate Court. Learned First Appellate Court vide its judgment dated 18.06.2016, partly allowed the appeal in following manner:-
"It is declared that the plaintiff is co-owner in possession of the suit land comprised in Khasra Nos. 745/265, 751/270, 936/755, 937/755, 420, 425, 455, 479, 519, Khata/Khatoni No. 55/61, to the extent of 1/4 share which is now comprised in Khata/Khatoni No. 61/69, Khasra Nos, 936/755, 1008/937/755, 745/265, 751/270, 420, 519 land measuring 22-3 bighas, and Khata/Khatoni No. 61/69/1, Khasra Nos. 455, 479 land measuring 0.13 Bighas, all land situated at Village and Post Office, Kandraur, Tehsil Sadar, District Bilaspur. H.P. and Sanjay Kumar son of Shri Nikku Ram, proforma defendant, Smt. Anjana and Madhu Bala, proforma defendants are also having 1/4 share each. The share of Sanjay Kumar son of Shri Nikku Ram is subject to deduction of 10 Biswas of land which is sold by him in favour of defendants No.1 and 2. The defendants No. 1 and 2 are also co-owner of the suit land to the extent of 10 biswas in Khata which is subject to partitition. The suit of the plaintiff is also decreed whereby permanent prohibitory injunction is passed against the defendants restraining them from causing interference in the ownership and possession of the plaintiff qua the suit land till the suit land remained joint."::: Downloaded on - 11/04/2023 20:35:43 :::CIS 7
By partly allowing the appeal instituted by original defendants No.1 and 2 (present appellants), learned First Appellate .
Court declared defendants No.1 and 2 also as co-owners of the suit land to the extent of 10 biswas in the Khata, which is subject to partition. Defendants No.1 and 2 in the aforesaid background have instituted the instant regular second appeal claiming that they are to be declared as owners in exclusive possession of 10 biswas of the suit land comprised in Khasra Nos. 455 and 479 situated at Village and Post Office, Kandraur, Tehsil Sadar, District Bilaspur. H.P.
3. During pendency of the instant regular appeal, CMP No.16177/2021 was moved under Order 23 Rule 3 CPC jointly by the appellants, respondent No.1(original plaintiff) and respondents No.3 & 4 (originally impleaded as proforma defendants No.4 and 5). The contents of this affidavit have been extracted earlier. The executants of this application have also appended their affidavits in support of averments made in the application. Their separate statements on oath were recorded in the instant matter on 03.01.2022, wherein all of them unequivocally stated that to settle the dispute amicably, they have resolved the matter amongst themselves and they (Pusha Devi, Anjana Devi, Madhu Bala) have no objections, in case, appellants/defendants No.1 and 2 (Suresh Kumar and Naresh Kumar) are declared exclusive owners in possession of the land measuring 10 biswas comprised in Khasra Nos.455 and 479. They ::: Downloaded on - 11/04/2023 20:35:43 :::CIS 8 had also stated that their statements on oath and the application so made by them were without any external pressure. Legal heirs of .
original defendant No.3-(Sanjay Kumar) viz. Ms. Shiya and Ms. Tamana sued as respondents No.2(i) and 2(ii) in the instant appeal, also appeared in person on 20.03.2023 and in their separate statements recorded on oath on the said date they stated having no objections, in case, the appellants are declared exclusive owners in possession of the land measuring 10 biswas comprised in Khasra Nos. 455 and 479. All the parties are represented through their learned counsel. Learned counsel for all the parties have no objections, in case, the judgments and decrees passed by the learned Trial Court on 23.09.2015 and by the learned First Appellate Court on 18.06.2016, are modified in terms of prayer made in the application and in terms of the statements of the parties.
4. Considering the facts and attending circumstances noticed above, allowing the prayer in the application will be in the interest of all the parties. Ordered accordingly. Since all the parties to the lis have amicably resolved the dispute amongst themselves, accordingly, the appeal is partly allowed. The judgments and decrees passed by learned Trial Court on 23.09.2015 in Civil Suit No. 91/1/2006 (Pusha Devi Vs. Suresh Kumar & Ors) and by the learned First Appellate Court on 18.06.2016 in Civil Appeal ::: Downloaded on - 11/04/2023 20:35:43 :::CIS 9 No.43/13/2015 (Suresh Kumar & Anr. Vs. Pushpa Devi & Ors.) are modified as under:-
.
It is declared that the plaintiff is co-owner in possession of the suit land comprised in Khasra Nos. 745/265, 751/270, 936/755, 937/755, 420, 425, 519, Khata/Khatoni No. 55/61, to the extent of 1/4 share, which is now comprised in Khata/Khatoni No. 61/69, Khasra Nos, 936/755, 1008/937/755, 745/265, 751/270, 420, 519 land measuring 22-3 bighas, and Khata/Khatoni No. 61/69/1, all land situated at Village and Post Office, Kandraur, Tehsil Sadar, District Bilaspur. H.P. and Sanjay Kumar son of Shri Nikku Ram, proforma defendant, Smt. Anjana and Madhu Bala, proforma defendants are also having 1/4 share each. The appellants (original defendants No.1 and 2) are held to be co-owners in possession of the suit land to the extent of 10 biswas in Khasra Nos.455 & 479. The suit of the plaintiff is also decreed whereby permanent prohibitory injunction is passed against the defendants restraining them from causing interference in the ownership and possession of the plaintiff qua the suit land till the suit land remained joint. Decree sheet be prepared accordingly.
With the aforesaid terms, the appeal is disposed of, so also the pending application(s), if any.
Jyotsna Rewal Dua Judge 10th April 2023 (rohit) ::: Downloaded on - 11/04/2023 20:35:43 :::CIS