Himachal Pradesh High Court
Smt. Vyasa Devi vs Appellate Court While Allowing ... on 22 December, 2021
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 22nd DAY OF DECEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL MISC. PETITION MAIN (ORIGINAL) No. 77 OF 2021
Between:
1.SMT. VYASA DEVI, WIFE OF SHRI
KARTAR SING, SON OF SHRI
BHADUR SINGH, AGED 67 YEARS.
2.SHRI KARTAR SINGH SON OF SHRI
BAHADUR SINGH,
BOTH RESIDENTS OF VILLAGE
BHAROH
(HAMIRPUR), P.O.
SUNDERNAGAR, DISTRICT MANDI,
H.P.
....PETITIONERS.
(BY SHRI G.D. VERMA, SENIOR
ADVOCATE, WITH M/S B.C. VERMA
AND SUCHITRA SEN, ADVOCATES)
AND
1. SHRI HARISH KUMAR, S/O SH.
JAGAT SINGH,
2. SHRI KAMLESH KUMAR, SON OF
LATE SMT. BINDRA DEVI,
3. SHRI DALBIR SINGH, SON OF
LATE SMT. BINDRA DEVI,
4. SH. SURESH KUMAR SON OF
LATE SMT. BINDRA DEVI,
5. SH. OMKAR SINGH, SON OF LATE
SMT. BINDRA DEVI,
6. SMT. RANJANA KUMARI,
DAUGHTER OF LATE SHRI
JAGAT SINGH,
7. SMT. SARLA DEVI WIDOW OF
LATE SHRI JAGAT SINGH,
8. NISHI KANT, SON OF LATE SHRI
SHANKAR SINGH,
9. SHASHI KANT, SON OF LATE SHRI
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2
SHANKAR SINGH,
10. SHRI RAVI KANT, SON OF SHRI
SHANKAR SINGH,
11. SH. MOHAN SINGH ALIAS
BALDEV, SON OF SHRI GANGA
.
SINGH,
12. SH. RAM SINGH SON OF SH.
DURGA SINGH
13. SMT. UMA DEVI DAUGHTER OF
LATE SHRI SHANKAR SINGH,
14. SHRI VISHAL, SON OF SHRI
RAM SINGH,
15. SH. SHIV PAL SINGH, SON OF
SHRI DURGA SINGH,
16. SH. ARJUN SINGH, SON OF SH.
SHIV PAL SINGH
17. KARAN SINGH, SON OF SHRI
SHIV PAL SINGH
....RESPONDENTS
(BY. SHRI NEERAJ GUPTA, SENIOR
ADVOCATE, WITH M/S AJIT PAL
SINGH JASWAL, RINKI KASHMIRI
AND PRANJAL MUNJA, ADVOCATES)
Whether approved for reporting?1 No
_______________________________________________________________________
Reserved on: 02.12.2021
This petition coming on for pronouncement of judgment this
day, the Court passed the following:
JUDGEMENT
By way of this petition, filed under Article 227 of the
Constitution of India, the petitioners herein are aggrieved by the
judgment passed by the Court of learned Additional District Judge,
Sunder Nagar, District Mandi, H.P., in Civil Miscellaneous Appeal
.
No. 124 of 2021, preferred under Order 43, Rule 1 of the Code of
Civil Procedure, titled as Harish Kumar & others Versus Vyasa Devi
and another, decided on 04.03.2021, vide which, the learned
Appellate Court while allowing the appeal filed by the respondents
herein, set aside the order passed by the Court of learned Senior
Civil Judge, Court No.1, Sunder Nagar, District Mandi, H.P., in Civil
Miscellaneous Application No. 30 of 2021, titled as Harish Kumar &
others Versus Vyasa Devi and another, decided on 30.01.2021, filed
in Civil Suit No. 13-1/2021, titled as Harish Kumar & others Versus
Vyasa Devi and another, vide which, an application filed under
Order 39, Rule 1 and 2 of the Code of Civil Procedure by the
respondents herein stood dismissed.
2. Brief facts necessary for the adjudication of the present
petition are as under:-
The respondents/plaintiffs (hereinafter referred to as
"plaintiffs") herein filed a suit for permanent prohibitory and
mandatory injunction under Section 37 and 38 of the Specific
Relief Act against the present petitioners/defendants inter alia on
the ground that the suit land was joint and un-partitioned and
without getting the land demarcated, the defendants had started
raising pillars for construction of a house on Khasra Nos. 3683,
3665, 3666 and 3664, measuring 282-00 sq. meters and had dug
out foundation for the pillars approximately 20 in mumber and
.
also erected the iron rods without consent and permission of the
plaintiffs and were in the process of filling in the pillars, for which
labour stood deployed. As per the plaintiffs, as the suit land was
joint and un-partitioned, the defendants had no right, title or
interest to raise any construction on the suit land without getting
the same partitioned and further they had no right to raise
construction on more than their rightful share.
3. The suit is being resisted inter alia on the ground that
the conduct of the plaintiffs was not fair as they had already
constructed their separate individual houses upon the joint land of
the parties to the suit, which fact was not disclosed by the
plaintiffs in their plaint. It was further the stand of the defendants
before the learned Court below that old house of the defendant
was existing upon Khasra No. 3682, 3663, 3664, 3665 and 3666
and old houses of the plaintiffs were also adjacent to the said old
house of defendants. It was further the stand that the house of the
defendants had outlived its life and had become unsafe for
dwelling purpose and was in dilapidated condition, and in these
circumstances, the defendants were under compulsion to remove
the old structure and construct a new house and construction of
the new house started in the month of May, 2020, after digging the
foundation for pillars and erection of iron structure. It is further
mentioned in the written statement that injunction suits titled as
.
Sandeep Jamwal vs. Kartar Singh alongwith application under
Order 39, Rules 1 and 2 of the Code of Civil Procedure and another
suit titled as Nirmala Katoch vs. Kartar Singh alongwith
application under Order 39, Rules 1 and 2 of the Code of Civil
Procedure were filed against them by the co-sharers, but in these
suits, the applications under Order 39, Rules 1 and 2 were
dismissed and the suit in issue therefore stood filed by the
plaintiffs in connivance with Sandeep Jamwal on false and
fictitious grounds. It is also mentioned in the written statement
that the site of the new house is in back side of the old house of
the plaintiffs and is not on valuable portion of the suit land.
4. Along with the suit, an application under Order 39,
Rules 1 and 2 of the Code of Civil Procedure was also filed by the
plaintiffs, seeking ad-interim injunction for restraining the
respondents/defendants from raising construction over the suit
land. This application was dismissed by the learned Trial Court
vide order dated 30.01.2021. While dismissing the application,
learned Trial Court observed that record demonstrated that in
terms of the jamabandi for the year 2017-18, the parties to the
suit alongwith others were co-sharers and were shown to be co-
owners in possession of the suit land. Learned Court observed that
a perusal of the Jamabandi for the year 2017-18 pertaining to the
suit land demonstrated that Khasra Nos. 3664, 3665 and 3666,
.
which were claimed by the plaintiffs to be in joint possession of co-
sharers, were recorded in specific possession of the defendant No.
2 and two other co-sharers, namely, Smt. Kanta Devi and Smt.
Nirmala Devi and not in joint possession of all the co-sharers.
Learned Court also observed that a party claiming ad-interim
injunction has to pass the triplicate test, and in this case, the
version of the plaintiffs that defendants were raising construction
over the land in joint possession of the parties was not supported
from the revenue record which demonstrated that there was no
prima facie case in favour of the plaintiffs. Learned Court also held
that passing of ad interim injunction order restraining one of the
co-sharers from raising construction over joint land in his specific
possession, would result into restraining a lawful owner in
possession from using his share in the suit land, which
demonstrated that balance of convenience was in favour of the
defendants and not the plaintiffs. It also held that the allegation of
the plaintiff that the area of land covered by the co-sharer was in
excess of his share, could be considered while effecting partition by
metes and bounds, and therefore, on these findings, learned trial
Court held that the plaintiffs were not entitled to blanket order of
ad-interim injunction restraining other co-sharers from raising
construction over a portion of the suit land recorded in the
exclusive possession.
.
5. Feeling aggrieved, the plaintiffs assailed the order so
passed by the learned Trial Court by way of an appeal. Vide order
dated 04.03.2021, this appeal stood allowed by the learned
Appellate Court and respondents, i.e. present petitioners have
been restrained from raising any construction over Khasra Nos.
3663, 3664, 3665 and 3666 of Khata No. 97 during the pendency
of the suit. Learned Appellate Court in the judgment passed by it
held that though the learned Trial Court in its order had rightly
observed that Khasra Nos. 3664, 3665, 3666 were in exclusive
possession of the respondent and his sisters (i.e. present
petitioners), yet, the trial Court erred in not taking note of the fact
that if respondents therein were permitted to raise construction
over the said Khasra numbers, then, it would exceed the share of
the respondents in the entire khata. Learned Appellate Court also
held that the learned Trial Court committed an error in
appreciating the ratio of the judgment passed by this Court in case
titled as Ashok Kapoor vs. Murtu Devi, 2015, Law Suit (HP) 510
and the same could not have been read in isolation to other
guidelines to find out whether carrying out construction was
detrimental to the interests of co-owners or not.
6. Feeling aggrieved, the defendants have filed this
petition.
.
7. Mr. G.D. Verma, learned Senior Counsel appearing for
the petitioners has argued that the order passed by the learned
Appellate Court is not sustainable in the eyes of law as learned
Appellate Court could not have had restrained, by way of an ad
interim injunction order, the present petitioners, who admittedly
are the co-owners of the Khata and also in possession of the suit
land from raising the construction. He has also argued that the
findings returned by the learned Appellate Court that the
petitioners were carrying out construction in excess of their share,
was beyond the pleadings and it is the appellate Court, which has
wrongly read and interpreted the judgment passed by this Court in
Ashok Kapoor's case supra.
8. Defending the judgment passed by learned Appellate
Court, Mr. Neeraj Gupta, learned Senior Counsel appearing for the
respondents has submitted that there was no infirmity with the
judgment passed by learned Appellate Court as the construction
being carried out by the defendants on the best portion of the land
was obviously to the detriment of the respondents herein and
further as the respondents/plaintiffs were also having right over
the suit land, being co-owners thereof, the present petitioners have
no right to carry out construction over the best portion of the suit
land till the same was partitioned by metes and bounds.
.
9. I have heard learned Senior Counsel appearing for the
parties and gone through the record as well as the judgments
passed by the learned Courts below.
10. The facts involved in the case have been narrated by
me hereinabove and the same are not being repeated for the sake
of brevity. It is not in dispute that the parties are co-sharers of the
suit land but the petitioners herein are recorded to be in
possession of the portion of the suit land in issue alongwith other
co-sharers. It is further not in dispute that the respondents herein
are not recorded to be in possession of the suit land. It is also not
in dispute that the respondents herein have also carried out
construction activities by raising constructions over the joint land,
as is evident from the record. In these circumstances, this Court is
of the considered view that the petitioners herein, who besides
being the co-owners of the suit land are also recorded to be in
possession thereof, cannot be estopped from raising construction
pending the adjudication of the civil suit. It is settled law that
injunction cannot be granted against a co-sharer and further as
the respondents herein themselves have constructed their houses
over the joint suit land, in these circumstances, they cannot be
permitted to restrain other co-sharers, i.e. present petitioners,
from doing so. The construction, which is being carried out by the
petitioners, however obviously shall be subject to the final
.
adjudication of the suit as also partition proceedings, if any, and if
the area upon which construction being carried out by the present
petitioners ultimately falls in the share of the plaintiffs in partition
proceedings, then, of course, consequences will ensue. However,
this does not means that till the suit land is partitioned, the
petitioners herein should be restrained from raising construction
over the parcel of the suit land in their possession. This Court in
Smt. Kalawati vs. Sh. Netar Singh and others, decided on
11.03.2016, has been pleased to held as under:-
"10. It would be evident from the decision, the
mere fact that the parties are co-owners and joint
owners etc. is not the sole criteria for granting or
refusing injunction, the conduct of the parties too
plays an important role and in such like cases, the
plaintiff conduct has to be free from blame so as to
enable the court to conclude that the plaintiff has
approached the Court with clean hands. But here is
a case where the petitioner though claims herself to
be a joint owner with the respondents after having
already raised construction over the suit land seeks
an injunction against the injunction without even
disclosing this fact."
.
11. Similarly, this Court in CMPMO No. 372 of 2020, titled
as Vinod Kumar vs. Anirudh & another, decided on 02.07.2021,
has held as under:-
"11. During the course of arguments, learned
counsel for the petitioner could not deny the fact
that both the plaintiff as well as other co-sharers
which include his sister also, have raised and
constructed houses over the suit land upon such
parcel of land which is in their respective
possession.
12. In these circumstances, in the considered view
of this Court, there is no infirmity in the findings
returned by the learned First Appellate Court while
setting aside the order of injunction passed by the
learned Trial Court, because this Court is also of
the considered view that ordinarily injunction
cannot be granted against a co-sharer.
Furthermore, as the plaintiff has himself
constructed his house over the suit land, he cannot
be permitted to restrain other co-sharers from doing
so. This, however, is subject to the rider that if the
suit land actually has not been partitioned and if,
in the partition proceedings, the portion of the suit
.
land, upon which the defendants are carrying out
construction, actually falls in the share of the
plaintiff, then the consequences will ensue.
However, till the partition proceedings are
culminated and taken to their logical conclusion, the
defendants cannot be restrained from raising
construction over a parcel of the suit land in their
respective possession.
12. Similarly, this Court in CMPMO No. 474 of 2018, titled
as Manoj Kumar vs. Bhagwan Singh and another, decided on
24.07.2021, has been pleased to held as under:-
"3. The learned counsel for the petitioner submits
that since the order has been vacated, the
defendants are attempting to raise construction
over the suit property in question. Therefore, an
order of injunction is required. However, the
learned counsel for the respondents/defendants
submits that the construction being put up is in
accordance with law and they are entitled to put up
the said construction.
4. In view of the contentions advanced and the
pendency of the suit for a very long time, it is only
.
just and necessary to order that if any construction
is being put up or may be put up by the defendants,
the same will necessarily be subject to further
orders of the Court. In case the defendants put up
any construction over the suit property in question,
that will not entitle them to claim any equity at the
time of final orders to be passed by the trial Court.
The construction of the respondents/defendants is
purely at their risks and peril."
13. This Court also in CMPMO Nos. 321 of 2017, titled as
Lahori Singh and others versus Bal Raj Singh, decided on
15.12.2017 and other connected matter, has been pleased to held
as under:-
"2. What weighed with the learned Courts below
was the fact that the name of the parties stood
recorded in the revenue record as co-owners.
However, what was not considered was the fact
that in the very same record, parties were recorded
to be in possession of separate portions of the land
holding. Whether this was pursuant to
settlement/private partition entered into inter se the
parties/their predecessor-in-interest or not, is the
subject matter of the suit. But the fact of the matter
.
being that parties as on the date of filing of the suit,
at least in the revenue record, were recorded to be
holding separate possession. It is in this backdrop,
this Court is of the considered view that interim
orders passed by the Civil Judge (Senior Division),
Court No. 1, Rohru and affirmed by the learned
Additional District Judge-(II), Shimla needs to be
modified to the following extent:-
(a) It shall be open for the defendants to raise
construction over the portion, exclusively in their
possession ;
(b) The same shall be subject to the outcome of the
suit/further proceedings, if any ;
(c) No equity shall be claimed by the defendants in
their favour for having raised any construction
during the pendency of the suit ;
(d) Construction, so raised, shall be squarely at the
risk and cost of the defendants ;
(e) Hearing of the suit is expedited.
Ordered accordingly"
14. In the perspective of what has been discussed
hereinabove, this Court is of the considered view that the
.
judgment passed by learned Appellate Court is not sustainable.
Learned Appellate Court erred in not appreciating that the suit
land was though joint however in terms of the revenue record the
same has been recorded to be in the exclusive possession of the
petitioners herein alongwith other co-sharers and the respondents
herein were not reflected to be in possession of the same. This
extremely important aspect of the matter has not been dealt at all
with by the learned Appellate Court in the correct perspective.
Similarly, learned Appellate Court also did not adjudicate on the
effect of respondents herein having constructed their own houses
on the joint land, as was the contention of the petitioners herein.
This in fact duly demonstrated that the respondents herein had
not approached the learned Trial Court with clean hands for the
purpose of the grant of interim relief. Thus, the findings, which
have been returned by learned Appellate Court while setting aside
the order passed by learned Trial Court, are not sustainable.
15. Accordingly, in view of the findings returned
hereinabove, as this Court is of the considered view that learned
Appellate Court has erred in setting aside the well reasoned order
passed by the learned Trial Court, vide which, ad interim
injunction prayed for by the respondents herein against the
petitioners herein was rejected, this petition succeeds and the
judgment dated 04.03.2021, passed by learned Additional District
.
Judge, Sundernagar, District Mandi, H.P. in Civil Miscellaneous
Appeal, titled as Harish Kumar and others vs. Vyasa Devi and
another, is set aside, however, it is observed that the findings,
which have been returned by this Court while deciding this
petition are only for the purpose of the adjudication of these
proceedings and the learned Courts below shall not be influenced,
in any manner whatsoever, by any of the observations made by
this Court in the disposal of this petition, during the adjudication
of proceedings before them. Construction, that may be carried out
by the petitioners, shall also abide by the final outcome of the civil
suit.
The petition stands disposed of in above terms, so also
pending miscellaneous application(s), if any. Interim order, if any,
stands vacated.
(Ajay Mohan Goel)
Judge
December 22, 2021
(narender
