Himachal Pradesh High Court
Nikku Ram vs Prakash Chand & Others on 11 May, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 488 of 2011.
Decided on : 11th May, 2015.
.
Nikku Ram ......... Appellant.
Versus
Prakash Chand & Others ...... Respondents.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 No.
For the appellant: Mr. Ajay Chandel, Advocate.
For the respondents: M/s Bhuvnesh Sharma & Ramakant
Sharma, Advocates.
Dharam Chand Chaudhary, J (Oral).
Plaintiff is in second appeal before this Court.
He is aggrieved by the judgment and decree dated 28.7.2011 passed by learned Additional District Judge, Hamirpur in Civil Appeal No.03 of 2011, dismissing thereby the appeal and the judgment and decree passed by learned trial Court in Civil Suit No.188 of 2004 affirmed.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:09:09 :::HCHP 22. The subject matter of dispute in the present lis is land entered in Khata No. 141 min, Khatauni No.222, .
Khasra Nos. 398, 399, 409, and 420, measuring 0-02-40 hectares, situated in Mohal Pansai Mouza Hathol, Tehsil Nadaun, District Hamirpur, H.P. The appellant-plaintiff claims himself to be in exclusive possession of the suit land. Entries showing S/Shri Sant Ram, Amro Devi, Vidya Devi, Hari Chand, Prakash Chand, and Kaushalya Devi etc., in possession thereof have been claimed to be wrong. The previous suit bearing Civil Suit No.241/92 filed by the defendants was decreed only for the relief of permanent prohibitory injunction and not for possession by way of demolition. Though he preferred an appeal, however, that was also dismissed. As per further case of the plaintiff, he is not in possession of the suit land for a period over 32 years and has constructed his house, cattle shed etc., thereon. The defendants allegedly are threatening to dispossess him therefrom. Hence, this suit.
::: Downloaded on - 15/04/2017 18:09:09 :::HCHP 33. In the written statement, by way of preliminary objections, a question of maintainability of .
the suit on account of the rights and status of the parties qua the suit land stand decided in previously instituted Civil Suit No.241/92, titled Prakash Chand and others versus Niku Ram and others, by learned Senior Sub Judge, Hamirpur has been raised. On merits also, it is averred that parties to the suit have been held co-sharer in joint possession of the suit land in the judgment rendered in the previous suit. The plaintiff and others have been restrained from changing the nature of the suit land and to raise construction thereon till the same is partitioned. He, therefore, is not correct in claiming himself to be in exclusive possession of the suit land.
4. On the pleadings of the parties, the following issues were framed by the trial Court:
1. Whether the plaintiff is entitled for relief of permanent prohibitory injunction, a sprayed?
OPP ::: Downloaded on - 15/04/2017 18:09:09 :::HCHP 4
2. Whether the suit is not maintainable in the present form? OPD
3. Whether the plaintiff has no legally enforceable .
cause of action? OPD
4. Whether the suit is bad for non-joinder of necessary parties? OPD
5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD
6. Whether the suit is liable to be dismissed with special costs under Section 35-A CPC? OPD
7. Relief.
5. After holding full trial, issue No.1 has been answered against the plaintiff whereas issues No.2 to 6 in favour of the defendants. As a result thereof the suit has been dismissed.
6. Learned lower appellate Court has affirmed the judgment and decree passed by the trial Court, which is under challenge in the present appeal.
7. The complaint is that both Courts below have failed to appreciate the judgment Ex.P-2 passed in the previous suit in its right perspective. Otherwise also, the findings recorded by both Courts below on all issues are ::: Downloaded on - 15/04/2017 18:09:09 :::HCHP 5 based upon surmises and conjectures, hence liable to e quashed. The findings that the suit is bad for non-joinder .
of necessary parties are also stated to be not in accordance with law.
8. On hearing learned counsel on both sides at admission stage itself and going through the record, it is crystal clear that previously the defendants sought decree of permanent prohibitory injunction, in the alternative for possession of the suit land by way of demolition by filing Civil Suit No.241/92 against the plaintiff and other co-sharers recorded in the possession of the suit land. The suit has been decreed vide judgment and decree dated 10.3.1998 Ex.P-2. The judgment so passed was challenged by the plaintiff herein and also the defendants herein by way of civil appeal and cross-objections, however, the appeal and the cross-objections were dismissed by learned Additional District Judge, Hamirpur. No further appeal seems to be preferred against the judgment and decree ::: Downloaded on - 15/04/2017 18:09:09 :::HCHP 6 so passed by learned Additional District Judge, therefore, the judgment and decree Ex.P-2 passed in the previous .
suit has attained finality.
9. A perusal of the judgment Ex.P-2 reveals that parties have been held to be in joint possession of the suit land. The plaintiff herein and other co-sharers were restrained from changing the nature of the suit land in any manner whatsoever or raising any construction thereon. The claim of the plaintiff that he is in exclusive possession of the suit land is, therefore, without any substance. The suit land rather is in the joint possession of the parties to the present lis and also other co-sharers.
Since the findings in the previous judgment Ex.P-2 have attained finality, therefore, it cannot be said that the plaintiff is in possession of the suit land in exclusion of other co-sharers. Other co-sharers have also not been impleaded as party in the present suit, therefore, learned trial Court was absolutely justified in holding that the suit is bad for non-joinder of necessary parties also. In such a ::: Downloaded on - 15/04/2017 18:09:09 :::HCHP 7 situation when the previous judgment has attained finality, both Courts below have not committed any .
illegality or irregularity in dismissing the suit and also the appeal. No legal question arises for determination in the present appeal and the concurrent findings recorded by both Courts below based upon the facts need not to be interfered with in the present appeal. The appeal, therefore, fails and the same is accordingly dismissed.
Pending application(s), if any, shall also stands disposed of.
No order so as to costs.
May 11, 2015. (Dharam Chand Chaudhary), (ps) Judge.
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