Himachal Pradesh High Court
Duglu Ram vs Mool Chand And Another on 25 November, 2022
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.46 of 2022
Decided on: 25th November 2022
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Duglu Ram .....Appellant
.
Versus
Mool Chand and another .....Respondents
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Coram
Ms. Justice Jyotsna Rewal Dua
Whether approved for reporting? 1
For the Appellant:
Mr. Janesh Gupta, Advocate.
For the Respondents: Mr. Rajesh Mandhotra, Advocate.
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Jyotsna Rewal Dua, Judge
The suit filed by the plaintiff seeking permanent
prohibitory injunction has been concurrently dismissed by
both the learned Courts below. Aggrieved, the plaintiff is
now taking third chance by means of the present regular
second appeal preferred under Section 100 of the Code of
Civil Procedure (CPC).
The parties hereinafter shall be referred to
according to their status before the learned Trial Court.
2. Facts:-
2(i). Briefly put the case of the plaintiff was that he
and defendants were recorded as joint owners in possession
1 Whether reporters of print and electronic media may be allowed to see the order?
of the suit land comprised in Khasra No.471, measuring
00-27-92 hectares, situated in Mohal Hirni Phati Nathan,
Kothi Naggar, Tehsil and District Kullu. As per the family
arrangement, Khasra No.471 came into the possession of
.
the plaintiff, whereas Khasra No.467 came into the
possession of the defendants. The possession of plaintiff
over Khasra No.471 was admitted by the defendants in Civil
Suit No.131/2012, titled Duglu Ram Versus Mool Chand
and another, instituted in the Court of learned Civil Judge
(Senior Division), Lahaul & Spiti at Kullu. That suit was
compromised between the parties. A compromise decree
was passed on 12.09.2015. The defendants were
threatening to forcibly remove a wooden 'khokha' of the
plaintiff raised by him over Khasra No.471 in the year
2010. This action of the defendants was in violation of the
compromise decree. The defendants were bound by the said
compromise decree. They had no right to interfere in the
plaintiff's peaceful possession over Khasra No.471. On
these submissions, decree for permanent prohibitory
injunction was prayed to restrain the defendants from
causing interference over the suit land.
2(ii). In defence, the defendants denied exclusive
possession of the plaintiff over Khasra No.471. Their case
was that the suit land (Khasra No.471) was owned and
possessed by the plaintiff, defendants alongwith several
other co-sharers, i.e. Churu Ram, Paine Ram, Khub Ram,
Pune Ram and Hira Lal etc. as per their shares. Plaintiff
.
was in possession of Khasra No.471 only to the extent of
his share, which abutted his owned land comprised in
Khasra No.461. The defendants were also in possession of
Khasra No.471 to the extent of their share abutting to their
owned land comprised in Khasra No.472. Defendants
denied interfering over the portion of land comprised in
Khasra No.471, which was admitted by them to be in
possession of the plaintiff. Regarding decree passed in Civil
Suit No.131 of 2012, the defendants pleaded that they had
never admitted plaintiff's exclusive possession over Khasra
No.471. That they had admitted plaintiff's possession over
the suit land only to the extent of his share. Regarding the
'khokha', the defence was that the same was constructed by
the defendants in their exclusively owned land comprised in
Khasra No.472.
2(iii). Parties led oral as well as documentary evidence
in support of their respective pleadings. After appreciating
the pleadings, the evidence and the submissions advanced
by the parties, learned Trial Court vide its judgment and
decree dated 22.02.2020, dismissed the suit. The decree
was affirmed by the learned 1st Appellate Court on
15.09.2021. It is in this manner that the plaintiff has now
come up in this regular second appeal.
.
3. Having heard learned counsel for the parties on
both sides and after perusing the records, I am of the
considered view that no case for interference with the
impugned judgments and decrees is made out. This is for
the following reasons:-
3(i). Plaintiff had claimed his exclusive possession
over Khasra No.471. The document placed by him in this
regard is Jamabandi for the year 2014-15 (Exbt. P1). The
suit land therein is recorded in cultivation and ownership of
various co-sharers including the plaintiff and defendants.
Plaintiff has not been reflected to be in exclusive possession
over this khasra number. The next document relied upon
by the plaintiff to establish his exclusive possession over
the suit land is the compromise executed between the
parties (Exbt. P-6) in Civil Suit No.131 of 2012. This
document also does not advance the case of the plaintiff to
be in exclusive possession over Khasra No.471. The
defendants in the said compromise have only admitted the
possession of the plaintiff over Khasra No.471 to the extent
of his admissible share. The oral evidence adduced by the
parties also does not substantiate plaintiff's plea of being in
exclusive possession over Khasra No.471. Plaintiff himself
has admitted that Khasra No.471 is not exclusively
.
possessed by him.
3(ii). The plaintiff had alleged that the defendants
interfered over his peaceful possession over Khasra No.471
by raising a 'khokha' thereupon. In the plaint, the averment
is that the 'khokha' was constructed by the plaintiff over
Khasra No.471 in the year 2010, whereas while appearing
in the witness box, he has given different versions with
respect to construction and occupation of 'khokha' over
Khasra No.471. He has stated that 'khokha' was
constructed in the year 1968 by one Sobha Ram son of
Revtu. He expressed his ignorance to the suggestion given
to him that between the years 1981 to 1984, one Tek
Chand had lived in the 'khokha' and that during the years
1985-1989, one Ram Lal remained in possession of the
'khokha'. Further that during the years 1990-1991, one
Daulat Ram lived in the said 'khokha'. From the plaintiff's
statement, it is quite apparent that the plaintiff is not sure
as to who remained in possession of the 'khokha' from the
year 1968 onwards. Plaintiff had not even been able to give
measurement of the 'khokha' in question. No site plan
(tatima) showing the location of the 'khokha' over the suit
land was placed on record. His pleading that 'khokha' was
constructed by him in the year 2010, therefore, cannot be
.
believed. The defendants' case is that 'khokha' is in their
exclusive possession and has been raised by them over
Khasra No.472. Their version is duly supported by DW2-
Paine Ram, a co-sharer of the suit land, who deposed that
'khokha' was raised by the defendants and they
(defendants) remained in possession of the said 'khokha'.
The plaintiff has himself admitted during his cross-
examination that the defendants are residing in the
'khokha' in question. It was for the plaintiff to prove his
case, which he failed to do.
4. In view of the aforesaid oral and documentary
evidence, the suit filed by the plaintiff for permanent
prohibitory injunction could not have been decreed. The
pleadings and evidence adduced by the parties has been
correctly and properly appreciated by both the learned
Courts below. The suit and the first appeal were, therefore,
rightly dismissed by both the learned Courts below. No
question of law, much less a substantial question of law, is
involved in this second appeal. Hence, finding no merit in
the instant appeal, the same is dismissed, so also the
pending miscellaneous application(s), if any.
.
Jyotsna Rewal Dua
November 25, 2022 Judge
Mukesh
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