Himachal Pradesh High Court
Dulo (Deceased) Hans Raj vs Prabhu Ram on 27 August, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.580 of 2007.
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Judgment reserved on:22.08.2019.
Date of decision:27th August, 2019.
Dulo (deceased) Hans Raj
and others .....Appellants.
Versus
Prabhu Ram .....Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 . No
For the Appellants : Mr. R.K. Gautam, Senior
Advocate with Ms. Megha
Kapur Gautam, Advocate.
For the Respondent : Mr. Ajay Kumar, Senior
Advocate with Ms. Rohini
Karol, Advocate.
Tarlok Singh Chauhan, Judge
Defendant is the appellant, who after having lost
before both the learned Courts below, has filed the instant appeal.
2. The parties shall be referred to as the 'plaintiff' and 'defendants'.
3. The plaintiff filed a suit for declaration with consequential relief of permanent and mandatory injunction on 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 2 the ground that there existed a water channel over Khasra No.49, measuring 5 Marlas. During the settlement, this Khasra .
No. 49 was amalgamated with Khasra Nos. 48 and 50 which were adjoining to it and thereby depicted by Khasra No.462, as reflected in the jamabandi for the year 1986-87. It was averred that there existed a water channel over this land. It was further averred that earlier land comprised in Khasra Nos. 48,49 and 50 thereof. The erstwhile was in the tenancy of the defendant and coming into force of H.P. Tenancy and Land Reforms Act, they have become owners owners of the land were Jawala Prasad and others. The plaintiff further averred that adjoining to this land, there was a land which was also owned by Jawala Prasad and it has now been shown as Khasra No. 48 and that was also in the tenancy of the plaintiff over which proprietary rights had been conferred upon him being tenant. However, 'kuhal' as it was existing on the spot, the plaintiff continued irrigating his land from the water coming from that water channel. The defendant, taking advantage of the entries made in the records of rights that is after getting Khasra No.49 amalgamated with other khasra numbers by carving out new khasra numbers and deleting the entry of water channel, started obstructing flow of water and tried to stop the same, even though, he had no right, ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 3 title or interest to do the same and thereby constrained the plaintiff to file the suit.
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4. The defendant contested the suit by filing written statement wherein preliminary objections regarding cause of action, locus standi, estoppel, valuation etc., were raised. It was further averred that suit was bad for non-joinder of necessary parties and was barred by limitation. On merits, it was numbers.
r to specifically averred that Khasra No. 498 was not being irrigated through khasra number 462 and these are not adjoining field It was also averred that field number 49 was not a 'kuhal' and field numbers 48,49 and 50 owned by land owners were in his possession. It was also averred that no amalgamation of any number had been made during the current settlement, rather, Khasra No. 462 had been carved out from old field numbers 48,49 and 50 in the current settlement and all these numbers are now in his cultivating possession. It was specifically averred that there is a 'kuhal' on the eastern side of Khasra No. 498 and the plaintiff is irrigating his cultivated land through this 'kuhal'
5. Replication was filed by the plaintiff in which he reiterated the allegations set up in the plaint and denied all those contrary averments made in the written statement.
::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 46. From the pleadings of the parties, the learned trial Court on 10.01.1994 framed the following issues:
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"1. Whether the plaintiff is co-owner in possession of the suit land as alleged? OPP.
2. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP.
3. Whether the Khasra No. 49 prior to settlement has been amalgamated in Khasra No. 462 during current settlement, if so, in what manner and to what effect? OPP.
4. Whether there exists no water channel in Khasra No. 462 as alleged? OPD.
5. Whether the plaintiff has got no cause of action and locus standi to sue? OPD.
6. Whether the act, conduct, acquiescence and silence of the plaintiff is a bar to the present suit? OPD.
7. Whether the suit is based on the old revenue extract hence, it is not maintainable as hit by the rules of the High Court as alleged? OPD.
8. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD.
9. Whether the suit is barred by limitation? OPD.
10. Whether the suit is based on wrong record which has duly been rectified in due process of law? OPD.
11. Whether the field No. 498 as at present as also in the old record is not connected with the land in Khasra Nos. 48, 49 and 50 and the plaintiff cannot ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 5 claim any right of irrigation through such water channel as alleged? OPD.
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12. Relief."
7. After recording evidence and evaluating the same, the learned trial Court decreed the suit filed by the plaintiff by passing a decree by declaring that there exists a water channel over old Khasra No. 49, now assigned Khasra No. 462/2 and that the plaintiff had got every right to irrigate the land comprised in Khasra No.498 through that channel existing over Khasra No. 462/2.
The defendant was further restrained by way of injunction from preventing the plaintiff from taking water and mandatory injunction was also issued directing the defendant not to obstruct the flow of water from this land.
8. Aggrieved by the judgment and decree passed by the learned trial Court, the defendant filed an appeal before the learned first appellate Court. However, the same was dismissed by the learned first appellate Court vide judgment and decree dated 26.07.2007 constraining the defendant to file the instant appeal.
9. During the pendency of the appeal, the defendant died and thereafter his legal representatives were ordered to be brought on record.
10. On 27.10.2008, the appeal was admitted on the following substantial question of law:
::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 6"Whether the lower appellate Court has failed to taken into consideration the documents produced .
before him regarding the revenue entries finally decided by the Financial Commissioner of H.P.?"
11. However, thereafter an application was filed by the appellant/defendant for framing additional substantial questions of law by way of CMP No. 9425 of 2018 and the same was allowed on 10.10.2018 on which date the following substantial question of law came to be framed:
"Whether the suit for declaration is not maintainable in absence of the real owners of Khasra No. 462/2 and as such the finding of both the learned Courts below on issue No.8 deserves to be set aside?"
12. During the course of hearing, learned counsel for the appellant only pressed and addressed arguments on substantial question of law that was framed on 27.10.2008.
I have heard the learned counsel for the parties and gone through the records of the case.
13. At the outset, it needs to be noticed that the defendant in his written statement has specifically raised the plea regarding non-joinder of necessary parties and qua this a specific issue by way of issue No.8 was framed by the learned trial Court. The same was answered as under:
"Issue No.8:::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 7
16. The defendant has submitted that the suit is bad for non-joinder of necessary parties. It is claimed that .
the owners of the land ought to have been impleaded as necessary party but that has not been done and in view of their non-joining the suit is bad for non-joinder. I have perused the record on the file. It is clear as afore discussed that the plaintiff has got no grievance against the owners i.e. Jawala Prasad etc. But the grievance is against the present defendant and admittedly, the water is being denied by the defendant. Thus, I feel that the owners were not required to be impleaded as parties and suit is not bad for non-joinder. Hence, decided accordingly."
14. The aforesaid findings have been affirmed by the learned first appellate Court in its judgment in para-22 which reads as under:
"22. The further case of the defendant is that the suit land was earlier owned by Jawala Prasad etc. and, therefore, these persons are necessary parties and in their absence the suit is bad for their non-joinder. This contention of the defendant is not tenable, because the land which was earlier owned by Jawala Prasad and his other co-sharers has been mutated in the name of the defendant vide mutation No. 194 vide which proprietary rights of the entire land of Khasra No. 462 have been conferred on the defendant under Section 104(3), of the H.P. Tenancy and Land Reforms Act. So the suit is not bad for non-joinder of necessary parties. This issue has also rightly been decided by the ld. trial Court against the defendant."::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 8
15. The learned Senior Counsel for the appellant has not been able to satisfy this Court as to how the findings of the .
learned trial Court as also the learned first appellate Court are in any manner erroneous much less wrong. No doubt, the suit land was earlier owned by Jawala Prasad and other co-sharers, but then it has specifically come on record that this land was under the tenancy of the defendant and proprietary rights qua the entire land of Khasra No. 462 were conferred upon defendant and mutation to this effect vide mutation No. 194 under Section 104(3) of the H.P. Tenancy and Land Reforms Act.
the Thus, Jawala Prasad no longer remained the owner of the suit land and cannot, therefore, be held to be even a proper much less a necessary party to the suit.
16. Apart from the above, a bare perusal of the plaint would go to show that no grievance has been made against the erstwhile owners i.e. Jawala Prasad and others and once that be so, then obviously, Jawala Prasad is not a necessary party, even though he may have been an erstwhile owner of Khasra No. 462/2.
17. That apart, even if, it is assumed that Jawala Prasad continued to be the owner of Khasra No. 462/2, even then, it would be noticed that the said Jawala Prasad has made no grievance and, therefore, it is not for the defendant to espouse ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 9 the cause and make a grievance on behalf of Jawala Prasad.
Above all, the law with regard to necessary and proper parties is .
well settled.
18. However, learned Senior Counsel for the appellants by placing reliance on the judgment of the Hon'ble Supreme Court in Bachhaj Nahar vs. Nilima Mandal and another (2008) 17 SCC 491 and Jagtu vs. Suraj Mal and other
19. In r to (2010) 13 SCC 769, would argue that in absence of a true owner, no relief can be granted to the plaintiff.
Bachhaj Nahar's case (supra), the issue involved was with regard to easement. The case of the plaintiffs was that they were absolute owners of the suit property and the first defendant had encroached upon it. The plaintiffs had not pleaded that even as an alternative case they were entitled to an easementary right of passage over the schedule property. It was in this background that the Hon'ble Supreme Court observed as under:
"18. A perusal of the plaint clearly shows that entire case of the plaintiffs was that they were the owners of the suit property and that the first defendant had encroached upon it. The plaintiffs had not pleaded, even as an alternative case, that they were entitled to an easementary right of passage over the schedule property. The facts to be pleaded and proved for establishing title are different from the facts that are to be pleaded and proved for making out an easementary ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 10 right. A suit for declaration of title and possession relates to the existence and establishment of natural rights .
which inhere in a person by virtue of his ownership of a property. On the other hand, a suit for enforcement of an easementary right, relates to a right possessed by a dominant owner/occupier over a property not his own, having the effect of restricting the natural rights of the owner/occupier of such property.
19. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right.
20.The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 11 single tenement and the ownership thereof vested in the same person and that there has been a severance of .
such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence.
21. A right of easement can be declared only when the servient owner is a party to the suit. But nowhere in the plaint, the plaintiffs allege, and nowhere in the judgment, the High Court holds, that the first or second defendant is the owner of the suit property. While concluding that the plaintiffs were not the owners of the suit property, the High Court has held that they have a better right as compared to the first defendant and has also reserved liberty to the plaintiffs to get their title established in a competent court. This means that the court did not recognize the first defendant as the owner of the suit property. If the High Court was of the view that defendants were not the owners of the suit property, it could not have granted declaration of easementary right as no such relief could be granted unless the servient owner is impleaded as a defendant. It is also ununderstandable as to how while declaring that plaintiffs have only an easementary right over the suit property, the court can reserve a right to the plaintiffs to establish their title thereto by a separate suit, when deciding a second appeal arising from a suit by the plaintiffs for declaration of title. Nor is it understandable how the High Court could hold that the apart from ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 12 plaintiffs, other persons living adjacent to and north of the suit property were entitled to use the same as .
passage, when they are not parties, and when they have not sought such a relief."
20. A perusal of para-21 as quoted above would show that in order to claim a right of easement, it was held that the same could be declared only when the servient owner is a party to the suit and in absence of a true owner, no relief could have been granted to the plaintiff in that case.
21. In Jagtu's case (supra), the plaintiff-respondent therein had filed a suit seeking declaration of certain rights over the suit land admitting the factual position that the land belonged to the State of Haryana and the respondent-plaintiff as well as appellant-defendant therein were tenants in the said suit land. It was in this background that the Hon'ble Supreme Court while holding the suit to be bad for non-joinder of necessary parties observed as under:
"8.In view of the provisions of Section 79 read with Order 27 Rule 1 and in view of the provisions of the proviso contained in Order 1 Rule 9 of the Code of Civil Procedure, 1908, if any relief is claimed against the State, the State is a necessary party. This view has been reiterated by this Court time and again, as is evident from the judgments in State of Punjab v. Okara Grain Buyers' Syndicate Ltd., AIR 1964 SC 669, Ranjeet Mal v. Northern Railway, (1997) 1 SCC 484, State of Kerala v. Southern Railway (1976) 4 SCC 265, Chief Conservator of ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 13 Forests v. Collector (2003) 3 SCC 472 and Collector v. Bagathi Krishna Rao (2010) 6 SCC 427.
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9. In view of the above, we are of the considered opinion that as the respondent-plaintiffs sought declaration of certain rights on the suit land belonging to the State of Haryana, the State of Haryana was a necessary party.
There is a complete fallacy in the finding recorded by the first appellate court that the respondent-plaintiffs had not sought any relief against the State. The first appellate court failed to appreciate that declaration in respect of certain rights over the land belonging to the State was the relief sought in the suit. Thus, in the absence of the owner of the land, no such declaration could be granted.
Therefore, the State of Haryana was a necessary party.
The suit, therefore, could not proceed for want of necessary parties."
22. Moreover, the ownership of Jawala Prasad stood extinguished automatically by coming into force of H.P. Tenancy and Land Reforms Act and the conferment of proprietary rights under the Act is automatic whereby the tenant would become owner of the land under his cultivation on the appointed day.
23. The learned Single Judge of this Court in Daulat Ram and others vs. State of Himachal Pradesh and others 1979 SLC, 215 held that conferment of proprietary rights on the non-occupancy tenants under sub-section (3) of Section 104 of the H.P. Tenancy and Land Reforms Act was automatic and it commenced from the date of issue of notification. Here, it shall ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 14 be apposite to refer to para-15 of the judgment which reads as under:
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"15. Under sub-section (3) of section 104 of the Act, all rights, title and interest (including a contingent interest, if any) of the landowner of the land held by tenants shall be extinguished, and all such rights, title and interest shall vest in the tenants free from all encumbrances created by the landowner, with effect from the date to be notified by the State Government in the Official Gazette, provided that if the tenancy is created after the commencement of this Act, the provision of this sub- section shall apply immediately after the creation of such tenancy. It cannot be disputed that the entry of tenancy existed much before the promulgation of the Act, and the respondents cannot question the tenancy when it is so recorded in the revenue papers which is a conclusive proof of the factum of the existence of the tenancy. Once a person is entered as a tenant in the revenue record then notwithstanding any agreement, etc. to the contrary, the person so entered shall become the owner by virtue of the provision of sub-section (3) of section 104 of the Act. The conferment of the proprietary rights under the Act is automatic from the date of the issue of the notification by the State Government in the Official Gazette, and the vestment of ownership shall be free from all encumbrances. Under rule 27 of the Himachal Pradesh Tenancy and Land Reforms Rules 1975, all rights, title and interests in the tenancy land of landowners...shall vest in the non-occupancy tenants with effect from the commencement of these rules. Similarly, the proprietary rights of tenancy land of the non-occupancy tenants on Government land shall also vest in the tenants from the commencement of these ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 15 rules. These rules came into force on 3.10.1975. Therefore, from that date the ownership rights vested .
free from all encumbrances on the persons who were so recorded as tenants under the landowners or for the matter of that the State Government in that land. Therefore, the plea taken up by the respondents that they were not the tenants is wholly incorrect because they cannot set up this case when they are so recorded, and once they are so recorded they become the owner of the land by virtue of the operation of law and they actually became owners with effect from the date of the publication of the rules."
24. This issue has thereafter been considered by a Division Bench of this Court (of which I was a member) in CWP No. 3084 of 2015, titled as Asif Beg and another vs. Estate Officer/Station Commander, decided on 20.06.2016, wherein it was observed as under:
"33. In the cases titled as Shri Bishambhar Nath versus Shri Hari Chand and others,1993 3 SLJ 2906; Sant Ram versus Jash Ram,1995 3 SLJ 2510; and Jethu through K. Guddi and others versus Gobind Singh, 1995 4 SLJ 3031, it has been held that the proprietary rights stand conferred upon the tenants by operation of law. It is apt to reproduce para 27 of the judgment in Jethu's case (supra) herein:
"27. Thus, on the basis of the aforesaid circumstances examined during the trial both the Courts below acted illegally in ignoring the legally competent evidence supporting the defendants' plea of tenancy as claimed by them. The defendants having been held to be in occupation of the suit land as tenants since 1954 55, till date, accordingly, under Section 104 of the H.P. Tenancy and Land Reforms Act the proprietary rights in ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 16 respect of the suit land stood conferred upon them and they have become owners of the same by operation of law."
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34. In the case titled as Mohar Singh versus Manju Devi & others, 1997 1 SLJ 304, this Court has held that the conferment of proprietary rights under HP Tenancy Act is automatic and by operation of law. It is apt to reproduce relevant portion of para 11 of the judgment herein:"
11. ..........Needless to point out here that after coming into force of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, the conferment of proprietory right is automatic and by operation of law. Rest of the matter is procedural as required under the Act and the rules framed thereunder."
35. This issue stands clinched by the Apex Court in Civil Appeal No. 5424 of 1998, titled as State of Himachal Pradesh versus Chander Dev, wherein it has been held that conferment of the proprietary rights is automatic. It is apt to reproduce relevant portion of the judgment herein:
"........From the above provisions, it is clear that all rights, title and interest of a landowner shall be extinguished and all such rights, title and interest shall, with effect from the date to be notified by the State Government in the Official Gazette, vest in the tenant free from all encumbrances."
36. The Apex Court in the case titled as Tarsem Lal and others versus Ram Sarup and others, 2014 AIR(SCW) 2886, held that a tenant becomes owner on enforcement of Act. It is apt to reproduce para 13 of the judgment herein:
"13. As per the aforesaid provision, all right, title and interest including a contingent interest of a land owner other than the land owner entitled to resume land under subsection (1) shall be extinguished and all such rights, title and interest in respect of the land in question vest in the tenant, i.e. original plaintiff, free from all ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 17 encumbrances from the date the Act came into force. The Act was published in the Official Gazette on 21st February, 1974 vide Act No.8 of .
1974. What is not in dispute is that the original plaintiff became owner of the suit land by operation of law and continued to enjoy all the rights including right of irrigation from the common source which was in possession of the original landlord."
37. Thus, it is accordingly held that the conferment of the proprietary rights is automatic, by operation of law."
25. In view of the aforesaid exposition of law, it is clearly evident that on the date of filing of the suit i.e. on 07.07.1992, Jawala Prasad was no longer the owner of the suit land and it was the defendant, who was owner thereof and mutation No. 194 to this effect has already been entered in his favour. Hence, the substantial question of law is answered accordingly.
26. Lastly, it needs to be noted that the defendant has converted the litigation into a fruitful industry. The case in hand shows that frivolous litigation has been prolonged by the defendant and the same is calculated venture involving no risk situation. After all, one has only to engage professionals to prolong litigation so as to deprive the rights of the parties and enjoy the fruits of illegalities. It is on account of such frivolous litigation that the court dockets are over-flowing. Here it is apt to reproduce the observations made by the Hon'ble Supreme Court in paras 174, 175 and 197 of the judgment in Indian Council ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 18 for Enviro-Legal Action vs. Union of India and others, 2011 8 SCC 161, which are as under:
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"174. In Padmawati vs Harijan Sewak Sangh, 2008 154 DLT 411 decided by the Delhi high Court on 6.11.2008, the court held as under: (DLT p.413, para 6) "6. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Court. One of the aims of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person."
We approve the findings of the High Court of Delhi in the aforementioned case.
175. The Court also stated: (Padmawati case, DLT pp. 414- 15, para 9) "Before parting with this case, we consider it necessary to observe that one of the main reasons for over-flowing of court dockets is the frivolous ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 19 litigation in which the Courts are engaged by the litigants and which is dragged as long as possible.
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Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts."
197. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.
1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 20 undeserved gain made by any party by invoking the jurisdiction of the court.
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2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.
4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine,penalty and costs. Any leniency would seriously affect the credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts."
27. The defendant has tried to prolong the litigation as he is in an advantageous position inasmuch as his fields are on higher elevation,whereas, fields of the plaintiff was on lower elevation. The water of 'kuhal' first had to pass through the fields of the defendant and in case the flow of the same is not stopped, the water thereafter would reach to the land of the plaintiff.
::: Downloaded on - 29/09/2019 02:39:51 :::HCHP 2128. Normally, this would have been a fit case where heavy and exemplary costs ought to have been imposed on the .
defendant. But, taking into consideration the fact that the plaintiff and defendant are neighbours, the Court refrains from imposing such costs. However, a stern warning is issued against the defendant not to indulge in obstructing the flow of water of 'kuhal' in future or else this Court shall be constrained to take a very-very serious view of the matter.
29. In view of the foregoing reasons and discussion, the appeal is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
27th August, 2019. (Tarlok Singh Chauhan) (krt) Judge ::: Downloaded on - 29/09/2019 02:39:51 :::HCHP