Ramesh Chand vs (By Sh. Y.P. Sood
2021 Latest Caselaw 5607 HP

     IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

             ON THE 7th DAY OF DECEMBER, 2021

                              BEFORE

         HON'BLE MS. JUSTICE JYOTSNA REWAL DUA




                                                              .

           REGULAR SECOND APPEAL No.27 of 2009

       Between:-





       RAMESH CHAND
       S/O SH. AMAR NATH,
       R/O MOHALLA BEHLI SHIV NAGAR,
       TEHSIL & DISTT. UNA, H.P.
                                                    ......APPELLANT



       AND

       KHUSHAL CHAND

       (BY SH. Y.P. SOOD, ADVOCATE)

       S/O SH. SAT PAL,
       R/O MOHALLA BEHLI SHIV NAGAR,
       TEHSIL & DISTT. UNA, H.P.
                                   .......RESPONDENT



       (BY SH. ARVIND SHARMA, ADVOCATE)

         This appeal coming on for hearing this day, the Court




    passed the following:





                            JUDGMENT

Suit filed by the appellant/plaintiff for

permanent prohibitory injunction has been concurrently

dismissed by both the learned Courts below. Aggrieved, he

has preferred the instant regular second appeal.

The status of parties hereinafter is referred to as

it was before the learned Trial Court.

2. Facts:-

2(i). Suit was filed by the appellant/plaintiff for

permanent prohibitory injunction for restraining the

respondent/defendant from interfering in the suit land

.

comprised in Khewat No.568, Khatauni Nos.891, 892, 893,

Khasra Nos.2084 (56-75), 2085 (14-62), 2064 (14-00), 2066

(41-76), 2087 (13-68), 2081 (4-38) and 2083 (6-45),

situated at Mohalla Up Mahal, Shiv Nagar, Tehsil & District

Una. Plaintiff, in the alternative, also prayed for relief of

mandatory injunction in case the defendant succeeded in

raising construction over the suit land during pendency of

the suit.

2(ii). The case put forth by the plaintiff was that the

suit land measuring 151-64 hectares was joint qua the

parties. It had not been partitioned by metes and bounds.

The nature of suit land was in form of a courtyard. The

defendant was threatening the plaintiff to raise construction

over the suit land without getting the same partitioned. The

request of the plaintiff to the defendant for desisting from

unwarranted threats of raising construction had gone

unheeded to, thereby compelling the plaintiff to file the suit

for permanent prohibitory injunction.

2(iii). The defendant pleaded that separate old abadis

of the parties were located over the suit land for more than

100 years. Defendant, alongwith his family members, has

been residing in a double storeyed house built over the suit

.

land and in the similar fashion, plaintiff is also residing

with his family in a double storeyed building located over

the suit land. The defendant denied that the parties were in

joint possession or joint ownership of the suit property.

2(iv). Parties led evidence in support of their

respective contentions. On consideration of the same,

learned Trial Court held that no fresh construction was

being raised by the defendant over the suit land and that

the parties have been in possession of the suit land in the

manner it was possessed by their forefathers. Accordingly,

the suit filed by the plaintiff was dismissed by the learned

Trial Court vide judgment and decree dated 24.05.2008.

Learned First Appellate Court vide its judgment and decree

dated 4.10.2008, affirmed the judgment and decree passed

by the learned Trial Court.

In the aforesaid background, the plaintiff has

filed the instant regular second appeal, assailing the

concurrent judgments and decrees passed against him.

3. The instant appeal was admitted on 25.02.2009

on following substantial questions of law:-

"1. Whether a co-owner can raise construction over and above his share and over the

.

property reserved for common purposes

without the consent of other co-owners and to the detriment to the interest of others in view

of the fact that property was held to be joint and law that possession of one co-owner is in possession of all.

2. Whether the findings are result of misreading of oral and documentary evidence on record especially statements of PW1, PW2 and DW1."

4. Both the above substantial questions of law are

based upon facts. The questions of law are being considered

hereinafter:-

4(a). The plaintiff appeared in the witness box as

PW-1. He deposed that the parties jointly owned the suit

land. It was in the form of a courtyard and the defendant

was trying to raise construction over the suit land

inasmuch as he had collected construction material on the

suit land. However, in his cross-examination, the plaintiff

admitted that both the parties had raised construction in

the form of double storeyed houses over the suit land from

the times of their forefathers and had been residing in the

same for years together. It was not the case of the plaintiff

that he had complained about raising of construction by

the defendant or the alleged extension of threats by the

defendant to anyone. The plaintiff had also deposed that

the defendant was not raising any construction at the site.

.

4(b). PW-2-Amar Chand also admitted in his cross-

examination that no construction was being raised by the

defendant on the spot.

4(c). Defendant appeared in the witness box as DW-1

and deposed that the parties were having their separate

double storeyed houses over the suit land for the last many

years and that they had been residing in their separate

houses for years together. The defendant also denied that

he intended to raise any fresh construction over the suit

land.

4(d). Both the learned Courts below have

concurrently appreciated and considered the pleadings and

evidence adduced by the parties to hold that in terms of the

revenue record, Exbt. P-1, i.e. Misal Hakiat Bandobast for

the year 2002-03, the suit land was joint between the

parties and had not been partitioned as yet. However, in so

far as the question of possession is concerned, the plaintiff

had himself admitted in his cross-examination that the

parties had been residing in their separate double storeyed

houses constructed by their forefathers over the suit land

for years together. These aspects were concealed by the

plaintiff in his plaint. The plaintiff did not disclose in his

plaint that he himself had raised pucca house over the suit

.

land. The plaintiff also admitted in his cross-examination

that the defendant had not raised any new construction

over the suit land. The defendant had also deposed that he

did not intend to raise any fresh construction over the suit

land. Thus, it had come in the evidence that the suit land,

i.e. courtyard, was common between the parties and no

construction was being raised over the courtyard by the

defendant. Consequently, the suit for injunction filed by the

plaintiff was liable to be dismissed.

5. The substantial questions of law, on which this

appeal was admitted, may now be answered.

Question of Law No.1:-

The plaintiff never pleaded that the defendant

was raising construction over and above his share over the

suit land. As observed earlier, the plaintiff has admitted

that the defendant was not raising any construction over

the suit land. Defendant had also stated that he did not

intend to raise any construction over the suit land.

The question of law is answered accordingly

against the appellant/plaintiff.

Question of Law No.2:-

The evidence adduced by the parties has already

.

been discussed. The findings by both the learned Courts

below have been recorded after properly appreciating the

oral and documentary evidence on record including the

statements of PW-1, PW-2 and DW-1.

The question of law is answered accordingly

against the appellant/plaintiff.

In fact, both the substantial questions of law are

in essence questions of facts and have been correctly

appreciated and considered by the learned Courts below.

For all the aforesaid reasons, I find no error in the

impugned judgments and decrees passed by the learned

Courts below, dismissing the suit filed by the plaintiff for

permanent prohibitory injunction. This appeal, being devoid

of any merit, is accordingly dismissed.

                                               Jyotsna Rewal Dua
    December 07, 2021                                Judge
          Mukesh