Himachal Pradesh High Court
Shivkant And Anr vs Sat Paul And Ors on 31 October, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 206 of 2018
Decided on: 31.10.2018
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Shivkant and Anr. ...........Petitioners
Versus
Sat Paul and Ors. ..........Respondents
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioners : Mr. N.K. Thakur, Senior Advocate, with
Mr. Divya Raj Singh, Advocate.
For the Respondents : Mr. Ajay Sharma, Advocate.
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Sandeep Sharma, Judge (oral):
Being aggrieved and dis-satisfied with judgment dated 15.3.2017, passed by the learned District Judge, Una, in CMA No. 22 of 2016, whereby order dated 28.4.2016, passed by the learned Civil Judge (Jr. Division) Court No. 4, Una, in CMA No. 178-VI/2014 in CS No. 253-I of 2014, titled Satpaul and Anr. v. Shivkant and Ors., came to be upheld, petitioner has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to set-aside aforesaid orders of injunction issued by the courts below.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 02/11/2018 22:56:16 :::HCHP 22. Mr. N.K. Thakur, learned Senior counsel representing the petitioners-defendants (herein after referred to as "the defendants"), .
while inviting attention of this Court to para-11 of impugned judgment dated 15.3.2017, passed by the learned District Judge, Una, contended that learned District Judge, wrongly placed reliance upon the report of Local Commissioner to conclude that passage as shown in khasra No. 4531 is only used by the respondents-plaintiffs (hereinafter referred to as the plaintiffs). He also, while referring to the site plan placed on record by the plaintiffs with the suit, contended that there is a passage on khasra No. 4531, existing between properties owned and possessed by the plaintiffs and defendants. He further contended that both the courts below miserably failed to take note of the fact that defendants purchased part of khasra No. 4531, which is a common passage from co-
sharer and since then, they have been using the same for going to their property situate on khasra Nos. 4067, 4528, 4529, 4536, 4530, 4569 and 4575, where earlier shops were existing and now, defendants proposed to construct community hall. With a view to substantiate aforesaid contention, Mr. Thakur, invited attention of this Court to the sale deed, produced on record, to demonstrate that co-sharer of land comprising of khasra No. 4531, namely Kishan Dev had sold his share in faovur of the plaintiffs and as such, both the courts below erred in concluding that ::: Downloaded on - 02/11/2018 22:56:16 :::HCHP 3 defendants had no right to use the common passage. Mr. Thakur also invited attention of this Court to the jamabandi pertaining to year, 2012- .
13, perusal whereof clearly suggests that name of defendant stands recorded as co-owner qua the suit land bearing khasra No. 4531, however, fact remains that such jamabandi never came to be placed on record before the courts below and as such, no finding, if any, came to be recorded by the courts below on the aforesaid aspect of the matter.
3. Consequently, in view of the aforesaid additional fact brought before this Court, this Court without going into the merits of the case, deems it fit to remand the matter back to the learned District Judge, to decide the appeal having been filed by the plaintiffs afresh without being influenced by its judgment dated 15.3.2017, taking note of the aforesaid jamabandi, if placed on record by the defendants by way of appropriate application in accordance with law. Ordered accordingly.
4. Learned counsel for the petitioners/defendants undertakes to move appropriate application before the court below on or before 19.11.2018, placing therewith aforesaid jamabandi. Accordingly, present petition stands disposed of in the aforesaid terms, so also pending application(s), if any.
::: Downloaded on - 02/11/2018 22:56:16 :::HCHP 45. Records of the case be sent back forthwith. Registry is directed to apprise the court below with regard to passing of instant order .
to enable it to proceed further with the matter. Learned counsel undertake to cause presence of parties on the aforesaid date.
Copy dasti.
31st October, 2018 (Sandeep Sharma),
Judge
manjit
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