Himachal Pradesh High Court
Jai Singh (Deceased) Through Lrs vs Harnam Singh (Deceased) Through Lrs on 30 June, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.503 of 2008 Decided on: 30th June, 2023 _________________________________________________________________ .
Jai Singh (deceased) through LRs .... Appellants Versus Harnam Singh (deceased) through LRs. ...Respondents _________________________________________________________________ Coram Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge 1 Whether approved for reporting?
_________________________________________________________________ For the appellants: Mr. Lovneesh Kanwar, Senior.
Advocate with Mr. Tek Chand,
Advocate.
For the respondents: Mr.Ajay Chandel, Advocate.
Jyotsna Rewal Dua, Judge
The appellants are the successors-in-interest of the plaintiff. The suit was instituted by the plaintiff against the respondents/defendants for permanent prohibitory and mandatory injunction. The suit was dismissed by learned Trial Court on 30.10.2006. Learned First Appellate Court partly set-aside this judgment and decree on 24.06.2008 and decreed the suit of the plaintiff for injunction, thereby restraining the defendants from raising any kind of 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 06/07/2023 20:31:28 :::CIS -2-construction or changing the nature of the suit land comprised in Khasra No. 553 measuring 0-00-97 hectares, situated in Village Tatih, Illaqua Suranga, Tehsil Sarkaghat, .
District Mandi, H.P.. The plaintiff is in Regular Second Appeal before this Court, primarily with the grievance that the suit should have been decreed for grant of mandatory injunction as well.
2. This appeal was admitted on 01.10.2008, on the following substantial question of law: -
"Whether the ld. Distt. Judge has failed to apply the provisions of Rules and Orders of Punjab and Haryana High Court Chapter-I, Part-M (1) as applicable to the Himachal Pradesh in the facts and circumstances of the case?"
3. Heard learned counsel on both sides on the above substantial question of law and with their assistance, I have also considered the record of the case.
4(i). Civil suit was instituted by the plaintiff for permanent prohibitory and mandatory injunction with respect to Khasra No. 553, measuring 0-00-97 hectares with the averments that the suit land was recorded in possession ::: Downloaded on - 06/07/2023 20:31:28 :::CIS -3- of the plaintiff as non-occupancy tenant and in the ownership of one Ranjit Singh and others. Ranjit Singh and others had created tenancy qua their shares in the suit land in favour of .
the plaintiff. That house of the plaintiff existed over the suit land. The defendants have no right, title or interest over the suit land, but with an ulterior motive to occupy it, they had started raising construction over the same.
The defence taken was that the entry in the column of ownership and possession in the revenue record was wrong and incorrect. Prior to the settlement, suit land was recorded in ownership and possession of one Amar Singh as a co-sharer. The defendants had got the suit land in exchange from Amar Singh, whereafter, the defendants constructed their house partly on the suit land and partly on abadi deh. The house constructed by the defendants was on the land which was in possession of the defendants.
4(ii). Jamabandi for the year 1998-99 was proved on record as Ex.P-1. Learned Trial Court considered this document and held that in terms of this jamabandi, plaintiff was shown to be in possession of the suit land as non-
occupancy tenant. Learned Trial Court then considered the ::: Downloaded on - 06/07/2023 20:31:28 :::CIS -4- fact that the plaintiff, in his plaint, specifically pleaded that co-owner of the suit land Sh. Ranjit Singh had created tenancy qua his share in favour of the plaintiff. The .
jamabandi showed that the plaintiff was tenant of the suit land, tenancy having been created by Ranjit Singh and Pratap Singh sons of Sh. Ram Dass. Learned Trial Court also observed that neither the plaintiff nor any of his witnesses stated that he was in possession of the suit land as tenant by way of exchange.
r Learned Trial Court also observed that Ranjit Singh and Pratap Singh, from whom the plaintiff had claimed tenancy by way of exchange, were not recorded owners of the entire suit land. They had no right to make exchange of the entire suit land to the extent of shares of the other co-owners. On that basis entry of non-occupancy tenant in favour of the plaintiff existing in Ex.P-1, Jamabandi for the year 1998-99 was not relied upon. Learned Trial Court also held that the part of the suit land was exchanged by one of its co-owners Amar Singh to the extent of his share in favour of the defendants. The defendants had raised construction on this portion of suit land. This fact was not specifically denied by the plaintiff. Learned Trial Court ::: Downloaded on - 06/07/2023 20:31:28 :::CIS -5- concluded that the plaintiff failed to prove his being in possession of the entire suit land. The suit was dismissed on 30.102.006.
.
4(iii). Before learned First Appellate Court, the plaintiff moved an application under Order 6 Rule 17 of Code of Civil Procedure, seeking amendment of the plaint. The application was allowed. The plaint was amended and a plea was incorporated to the extent that the plaintiff became non-
occupancy tenant by way of exchange of land from Ranjit Singh and Pratap Singh. Learned First Appellate Court observed that both the parties had been claiming title of the suit land on the basis of exchange, from co-sharers of the suit land. The plaintiff had claimed himself to be the non-
occupancy tenant in possession of the suit land by way of exchange from co-sharers Ranjit Singh and Pratap Singh sons of Ram Dass. Whereas, the defendants had claimed possession over the suit land by way of exchange from Amar Singh, another co-sharer of the suit land. Learned First Appellate Court also observed that in view of common practice prevailing in the area at the time in question, oral exchange, as claimed by both the parties, was permissible.
::: Downloaded on - 06/07/2023 20:31:28 :::CIS -6-There was no requirement of any documents so as to effect exchange of agriculture land. Learned First Appellate Court also took notice of the statement of Amar Singh, a co-sharer .
of the suit land, who as DW-2 deposed that he had given his share over the suit land in exchange to the defendants and the defendants thereafter raised construction of their house over the suit land. Similarly, learned First Appellate Court considered the evidence that the plaintiff was in possession of the shares of Ranjit Singh and Pratap Singh in the suit land.
In view of the above observations, learned First Appellate Court set aside the judgment and decree passed by learned Trial Court and partly decreed the suit filed by the plaintiff for the purpose of injunction.
The grievance of the plaintiff appellant is that in the given facts when the suit was decreed for the purposes of injunction, the relief of mandatory injunction by way of demolition of the house constructed by the defendants over the suit land could not have been declined to him.
4(iv) Having heard learned counsel for the parties, I am not inclined to interfere with the judgment and decree passed by learned First Appellate Court, this is for the ::: Downloaded on - 06/07/2023 20:31:28 :::CIS -7- following reasons: -
4(iv)(a) Learned counsel on both sides made elaborate submissions on para-28 of the judgment and decree .
passed by the learned First Appellate Court. This para reads as under: -
"28. The learned trial judge has dismissed the suit primarily on the ground that the evidence led by the plaintiff is against the pleadings. However, after the amendment, the plaintiff has made it clear that he is recorded as "Gair-Maurusi" in view of the exchange. Since the factum of the exchange of the suit land stand fairly established from the evidence on record as such the findings rendered by the learned trial Judge that plaintiff is not entitled to the relief of permanent prohibitory injunction cannot be legally sustained. The court cannot ignore the fact that defendant himself has admitted in his cross-
examination that when he forcibly constructed the house that stay order was obtained by the plaintiff and defendants continued with the construction despite the stay order. The stay was admittedly regarding Khasra No. 533. Equally important, is the fact that even the mutation of the exchange has not been effected in favour of the defendant. thus, the contention of the defendant that plaintiff has failed to prove the title is merit less when defendant themselves were not recorded co-owner on the basis of the exchange. There is no dispute with the fact that the plaintiff for his father has taken in exchange only the land in respect of the share of Sh. Ranjeet Singh and Sh. Pratap Singh and not in respect of Sh. Amar Singh. However, the fact remains that Sh. Jai Singh plaintiff is recorded in possession of the suit land ::: Downloaded on - 06/07/2023 20:31:28 :::CIS -8- whereas the name of defendant is not occurring anywhere. If the plea of the defendant that he has taken the share of Sh. Amar Singh in exchange is to be upheld with the same yardstick it would mean that the .
possession of the plaintiff has taken the share of co-
owner Sh. Ranjeet Singh and Sh. Pratap Singh in exchange and this raft also proved from evidence on record."
The findings recorded in this para are to be read vis-à-vis Ex.P-1 i.e. jamabandi for the year 1998-99. In this jamabandi, Khasra No. 553 is shown to be in ownership of various co-shares including Ranjit Singh, Pratap Singh and Amar Singh. It is the pleaded case of the plaintiff that he got the suit land in exchange from Ranjit Singh and Pratap Singh and thus, became non-occupancy tenant over the entire suit land, whereas, the case of the defendants was that they were in possession over the suit land given to them in exchange by Amar Singh i.e. one of the recorded co-sharers over the suit land. The plea of the plaintiff that he was put in possession of the entire suit land by way of exchange of land is not borne out from the record. Ex.P-1, jamabandi for the year 1998-99, points out possession of the plaintiff over suit land given to the him by Ranjit Singh and Pratap Singh. These co-sharers could have put the plaintiff in possession only to the extent of ::: Downloaded on - 06/07/2023 20:31:28 :::CIS -9- their shares and not the entire suit land. The plaintiff cannot be considered to be in possession of the entire land in terms of Ex.P-1. The plaintiff has not even denied that Amar Singh .
was one of the co-sharers over the suit land or that he had parted with his share in the suit land in favour of the defendants. The plaintiff while appearing in the witness-box as PW-1, had also stated during the course of his cross-
examination that the defendants had raised construction of their house, part of which was over Abadi Deh and other part was on the land that was originally owned by Amar Singh.
Taking note of the above facts, learned First Appellate Court had held that the plaintiff is entitled to relief of injunction against the defendants regarding any interference or raising any kind of construction over the suit land till its final partition. The obvious inference is that the learned First Appellate Court had held both the parties to be in possession of their respective shares taken by them from Ranjit Singh and Pratap Singh (in case of plaintiffs) and Amar Singh (in case of defendant) in Khasra No. 553.
Substantial question of law: -
4(iv)(b) Learned senior counsel for the appellant-plaintiff ::: Downloaded on - 06/07/2023 20:31:28 :::CIS
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contended that relief of mandatory injunction was declined to the plaintiff on the ground that the demarcation report (Ex.PW-5/A) was not in consonance with the guidelines .
contained in Chapter X of H.P. Land Record Manual.
According to learned Senior Counsel, in case the demarcation was found to be in violation of the guidelines, then it was incumbent upon the learned Court to have ordered fresh demarcation by appointing a Local Commissioner. By not resorting to the appointment of Local Commissioner, learned First Appellate Court had wrongly failed to apply the provisions of Rules and Orders of the Punjab and Haryana High Court Chapter I, Part-M (1). In support of his submissions, reliance was placed upon AIR 2003, HP 87 (Bali Ram Vs. Mela Ram and another) and 2019 (2) Him.L.R. 852 (Ram Lal & sons Vs. Salig Ram & Ors.).
The above submissions do not hold good in the given facts of the case. Both the parties have been held to be in respective possession of their shares in the suit land which they had obtained from original co-sharers of the suit land.
Plaintiff was put in possession of shares of Ranjit Singh and Pratap Singh and the defendants were put in possession of ::: Downloaded on - 06/07/2023 20:31:28 :::CIS
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share of Amar Singh. Instant was not a case of boundary dispute. The plaintiff has alleged that the defendants did not .
have any right over the suit land and that they had encroached over plaintiff's land in Khasra No. 553. The defence taken was that the plaintiff was not in possession over the entire suit land comprised in Khasra No. 553. The defendants were also in possession of Khasra No. 553 to the extent of Amar Singh's share given to them by Amar Singh, one of the admitted co-sharers of the suit land. Both the parties had alleged themselves to be owners in possession over respective shares of the original co-owners. Co-owner Amar Singh had corroborated the version of the defendant. In the given facts and circumstances of the case and the evidence on record, learned First Appellate Court did not commit any error in declining the prayer of the plaintiff for appointment of Local Commissioner. Substantial question of law is accordingly answered in favour of the appellant.
5. In view of the above, there is no merit in the present appeal. The same is accordingly dismissed.::: Downloaded on - 06/07/2023 20:31:28 :::CIS
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The pending miscellaneous application(s), if any, also stand disposed of.
.
Jyotsna Rewal Dua
Judge
June 30, 2023
R.Atal
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