Himachal Pradesh High Court
Champa Devi vs Satya Paul & Another on 12 May, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
RSA No. 176 of 2006
Reserved on: 4.5.2023
Date of decision : 12.5.2023.
Champa Devi ...Appellant
Versus
Satya Paul & another ...Respondents
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr.Bhupinder Gupta, Sr.
Advocate with Mr. Pranjul
Munjal, Advocate.
For the respondents : Mr. Praveen Chandel, Advocate.
Satyen Vaidya, Judge:
By way of instant appeal, appellant has assailed judgment and decree dated 5.12.2005, passed by learned Presiding Officer/Additional District Judge, Fast Track Court, Hamirpur, H.P. in Civil Appeal No. 31 of 1998, whereby the judgment and decree passed by learned Sub 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 12/05/2023 20:44:17 :::CIS -2-Judge (II), Hamirpur dated 29.11.1997 in Civil Suit No. 217 of 1993, RBT 529 of 1994 was affirmed.
.
2. The parties hereunder shall be referred by the same status, which they held before learned trial Court.
Appellant was plaintiff and respondents were defendants.
3. Plaintiff filed suit for following relief:-
"It is, therefore, prayed that a decree (A) for declaration to the effect that the plaintiff is entitled to remain joint owner of the southern wall of the house of the defendants alongwith defendants which is adjoining to the land owned and possessed by the respondents comprising in khata No. 9 min, khatauni No. 57, khasra No. 239 measuring 139.85 bms as entered in the copy of jamabandi 1988-89, Up-Mahal Shivnagar, Tappa Bazuri, Teh. and Distt. Hamirpur with a consequential relief of permanent injunction restraining the defendants from interfering in any manner in or over the suit land, (B) Mandatory injunction against the defendants directing them not to create any hindrance in the use of the southern wall of their house by the respondents more particularly towards the land of the plaintiff as mentioned in prayer (A) be passed against the defendants with costs."
4. The suit was filed on the premise that defendant No.1 and one Sh. Jaswant Rai were owners of plots/lands abutting to each other. On 8.10.1983, an agreement was ::: Downloaded on - 12/05/2023 20:44:17 :::CIS -3- executed between Sh. Jaswant Rai and defendant No.1, whereby it was agreed that southern wall of the house of .
defendant No.1 will be raised by defendant No.1 but would remain common and jointly owned by both of them. The land of Sh. Jaswant Rai was comprised in khata No. 9 min, khatauni No. 57, khasra No. 239, situated in Up-Mahal Shivnagar, Tappa Bazuri, Tehsil and District Hamirpur (for short the 'suit land'). Plaintiff purchased the suit land from Sh. Jaswant Rai through registered sale deed on 26.2.1993. Plaintiff thus claimed to have stepped into the shoes of her predecessor-in-interest and had thus sought to enforce her rights in respect of common southern wall of the house of defendant No.1.
5. As per plaintiff, on 20.6.1993, defendants obstructed the plaintiff and her husband from ploughing the suit land. She was abused and her husband was also injured by a stone thrown at him by defendant No.2.
Plaintiff was threatened of being ousted from the suit land.
On such cause of action, plaintiff approached the learned trial Court.
::: Downloaded on - 12/05/2023 20:44:17 :::CIS -4-6. Defendants did not specifically deny the execution of agreement dated 8.10.1983 with Sh. Jaswant .
Rai. The enforceability of agreement dated 8.10.1983, however, was denied firstly on the ground that it was without consideration and secondly that it was executed under mistake as to material fact. As regards want of consideration, it was submitted that Sh. Jaswant Rai had agreed to transfer his land to the defendants, which he had failed and, therefore, there was no consideration paid by Sh. Jaswant Rai in lieu of the rights granted to him under the agreement. For mistake as to fact, it was submitted that the defendants got their land demarcated and it was found that the land to the extent of two feet beyond the alleged common wall belonged to defendant No.1.
7. In replication to amended written statement, the plaintiff specifically averred that defendant No.1 had entered into an agreement with Sh. Jaswant Rai for getting his map approved from the local authority as well as Town & Country Planning Department, failing which, he was ::: Downloaded on - 12/05/2023 20:44:17 :::CIS -5- under liability to leave a space of one meter from the boundary of his land.
.
8. The learned trial Court framed the following issues:-
i) Whether the plaintiff is entitled to the relief of declaration and permanent injunction as prayed for? OPP.
ii) Whether the plaintiff is entitled for the relief of mandatory injunction? OPP.
iii) Whether the suit is not maintainable in the
r present form? OPD.
iv) Whether the plaintiff has no locus standi and
cause of action to file the suit? OPD.
v) Whether the plaintiff is stopped to file the suit by
his act and conduct? OPD.
vi) Relief.
Issues No. 1 and 5 were decided in negative.
Issues No. 3 and 4 were decided in affirmative, whereas issues No. 2 and 5A were held to have become redundant.
Accordingly, the suit of the plaintiff was dismissed primarily on the ground that the agreement dated 8.10.1983 was not enforceable being without consideration. Learned trial Court found that since Sh.
Jaswant Rai had not given any land or money to defendant ::: Downloaded on - 12/05/2023 20:44:17 :::CIS -6- No.1 in lieu of the rights under the agreement, the agreement was without consideration and void under .
section 25 of Indian Contract Act. Further, the learned trial Court though took notice of the statement made by PW-7 Sh. A. R. Sankhyan, an official from the office of Town and Country planning department, to the effect that the plan of the house of defendant No.1 was sanctioned on the basis of southern common wall and agreement to that effect executed between Sh. Jaswant Rai and defendant No.1, but opted to ignore the same being beyond pleadings.
9. The first appeal filed by the plaintiff was also dismissed vide impugned judgment and decree passed by learned First Appellate Court. In addition to affirmation of the findings returned by learned trial Court, the learned First Appellate Court also held the agreement dated 8.10.1983 as unenforceable on the ground that the consideration of getting the map of the house of defendants approved was unlawful.
10. The instant appeal was admitted for hearing on 11.8.2006 on following substantial question of law: -
::: Downloaded on - 12/05/2023 20:44:17 :::CIS -7-"Whether the two Courts below have committed serious illegality in holding that the respondents-defendants are .
not bound by the compromise, Ex. P-1, as it is not registered and also because there was no consideration for the right created in favour of the appellant-plaintiff's predecessor-in-interest Jaswant Rai under the agreement?"
11. I have heard learned counsel for the parties and have also gone through the record carefully.
12. The agreement dated 8.10.1983 has been proved on record as Ext. P-1. The reading of contents of Ext. P-1 reveals that Sh. Jaswant Rai and defendant No.1 had agreed that the land abutting to the land, on which defendant No.1 was constructing the house, belonged to Sh. Jaswant Rai. The wall to be constructed on the southern boundary of the house of defendant No.1 would be constructed by defendant No.1 but would be owned by both the parties and also both of them would have right of user of said wall. Defendant No.1 would not construct any door or window towards the common wall and while laying the lintel, defendant No.1 would leave 4½ inches space of the wall for user of Sh. Jaswant Rai. Such right in favour ::: Downloaded on - 12/05/2023 20:44:17 :::CIS -8- of Sh. Jaswant Rai was stated to have given in lieu of his leaving land in favour of defendant No.1. It is not in .
dispute that the wall was raised by defendant No.1 as agreed vide aforesaid agreement Ext. P-1.
13. Evidently, no dispute arose between Sh.
Jaswant Rai and defendants after execution of agreement till the suit land was sold to plaintiff. Defendants never challenged the agreement to be void or voidable except by making averments in the written statement for the first time.
14. After going through the entire material available on record, I am of considered view that learned trial Court had erred in ignoring the statement of PW-7 for want of necessary pleadings. It appears that the learned trial Court had not gone through the contents of replication, wherein the plaintiff had specifically averred that without concession given by Sh. JaswantRai to defendant No.1, the map of the house of defendant No.1 would not have been approved, as he had not left the requisite set back. PW-7 was an official of Town & Country Planning Department, ::: Downloaded on - 12/05/2023 20:44:17 :::CIS -9- who had specifically deposed on oath that the map of the house of defendant No.1 was sanctioned on the basis of the .
terms of agreement dated 8.10.1983 and defendant No.1 had got the map sanctioned by placing on record a copy of such agreement. He further had stated that in case the common wall was not shown, the plan of the house of defendant No.1 would not have been approved without the provision of set-back area of one meter. From cross-
examination of this witness on behalf of the defendants, it was clearly revealed that but for the common wall, both the parties had to leave one meter area in width as set back of their respective lands. Except as above, the statement of PW-7 was not seriously disputed in cross-examination.
Further, while being cross-examined, defendant No.1 did not specifically deny the fact that he had entered into an agreement with Sh. Jaswant Rai for getting the plan of his house sanctioned. He simply feigned ignorance.
14. Thus, the findings of fact recorded by learned trial Court was not in terms of the material available on record. It being so, the consideration for execution of ::: Downloaded on - 12/05/2023 20:44:17 :::CIS -10- agreement was duly proved. The learned trial Court had misconstrued the consideration required for execution of .
agreement to be exchange of some tangible gain either in the shape of cash or kind, whereas the consideration for the purpose of an agreement is well defined in Section 2 of Indian Contract Act, which reads as under: -
"2. Interpretationclause: -- In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:--
(a) .......
(b) .......
(c) ......
(d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;
(e) .......
(f) .......
(g) .......
(h) .......
(i) .......
(j) .......
15. The judgment and decree passed by learned trial Court was thus not in consonance with the facts of the ::: Downloaded on - 12/05/2023 20:44:17 :::CIS -11- case as also the law applicable thereto and for such reason could not have been affirmed by learned First Appellate .
Court. Additionally, the findings returned by learned First Appellate Court to the effect that the consideration for agreement Ext P-1 was not lawful also cannot be sustained for the reasons that there was no material on record to suggest that the sanctioning of plan of the house of defendant No.1 by the local authority as well as Town & Country Planning Department was not in accordance with law. PW-7 clearly stated that the plan of the house of defendant No.1 was sanctioned on the basis of fact that defendant No.1 had raised a common wall with his neighbour Sh. Jaswant Rai. He had further stated that had this not been the situation, the plan would not have been sanctioned. This clearly implies that the prevalent rules permitted such sanction. Impliedly the requirement of setback could be waived in case a common boundary was raised. Since the converse has not been either proved or shown to this Court, it can be safely concluded that by construction of common wall, defendant No.1 had complied ::: Downloaded on - 12/05/2023 20:44:17 :::CIS -12- with the prevalent rules. In result, both defendant No.1 and Jaswant Rai had gained one-meter additional lands for .
their use which otherwise would have been left as setback area.
16. In light of above discussion, the judgments and decrees passed by both the courts below cannot be sustained. The same are accordingly set aside.
Substantial Question of law is accordingly answered.
17. In result, the appeal succeeds. The suit of the plaintiff is decreed. Plaintiff is declared to be the joint owner of the southern wall of house of defendants along with defendants which adjoins the land owned and possessed by plaintiff and comprised in khata No. 9 min, khatauni No. 57, khasra No. 239 situated in Up-Mahal Shivnagar, Tappa Bazuri, Tehsil and District Hamirpur.
The defendants are also restrained by decree of permanent prohibitory injunction from interfering in any manner with the right of user of plaintiff on the common wall constructed in terms of agreement Ext. P-1 and also from interfering in any manner in the right of user of plaintiff ::: Downloaded on - 12/05/2023 20:44:17 :::CIS -13- over land khata No. 9 min, khatauni No. 57, khasra No. 239 situated in Up-Mahal Shivnagar, Tappa Bazuri, Tehsil .
and District Hamirpur.
18. The appeal is accordingly disposed of. Decree sheet be prepared. Pending applications, if any, also stand disposed of. Records of the learned courts below be returned forthwith.
r (Satyen Vaidya)
12th May, 2023 Judge
(kck)
::: Downloaded on - 12/05/2023 20:44:17 :::CIS