Mehar Chand vs Bhadar

V.K. Ahuja, J.—This is a Regular Second Appeal filed by the appellant/plaintiff u/s 100 C.P.C. against the judgment and decree dated 1.11.1999 passed by the learned Additional District Judge, Mandi, vide which he had reversed the judgment and decree dated 17.3.1994 passed by the learned Sub Judge, Sundernagar, decreeing the suit of the plaintiff for permanent prohibitory injunction. Briefly stated, the facts of the case are that the appellant hereinafter referred to as the plaintiff filed a suit for declaration with consequential relief of injunction. It was alleged by the plaintiff that the land measuring 0-9-10 Bigha comprised in Khasra No. 66 was purchased by him vide registered sale deed dated 20.1.1981 from one Shri Lesar. The land is abutting National Highway No. 21. It was alleged that prior to the sale of the suit land, the vendor Shri Lesar was in exclusive possession and after sale, the possession was delivered to the plaintiff. It was further alleged that during the consolidation operation behind the back of the plaintiff, the defendant got his name entered qua the suit land in collusion with the consolidation staff. It was further alleged that the defendant without any right, title and interest and on the basis of wrong revenue entries started laying foundation over the suit land since 7.2.1990. The plaintiff asked the defendant not to undertake the construction, but he did not agree. Hence, the suit for declaration and injunction filed by the plaintiff.

During the pendency of the case, the plaintiff abandoned the relief of declaration since the consolidation authorities had made the correction in his favour and he confined the relief claimed by him for injunction only and for possession in case the plaintiff succeeds to raise any construction over the suit land.

The defendant pleaded that Lesar was not owner in possession of the entire Khasra No. 66, but was owner to the extent of 1/3rd share in Khasra No. 66 and as such, he was not legally competent to sell the land in excess of his share and the land was in joint possession of all the three co-sharers. It was further alleged that the suit land had been leased to M/S Pal Industries, Naulakha, Sundernagar, since 1974 and all the three co-sharers of the suit land were receiving the rent of the suit land in equal shares from the above Lessee Firm. It was further pleaded that the plaintiff was never in possession of the suit land and the Director Consolidation, had illegally incorporated the name of the plaintiff in the revenue record. It was also pleaded that the defendant is owner in possession of the suit land and he has completed the construction of the plinth of the house in January, 1990 and as such, the suit is liable to be dismissed.

On the pleadings of the parties, the following issues were framed by the learned trial Court:-

Whether the plaintiff has become absolute owner of the suit land as alleged? ... OPP

Whether the suit is bad for non-joinder of necessary parties? ... OPD

Whether the suit is time barred? ... OPD

Whether the present suit is maintainable in the present form? ... OPD

Relief.

However, Issues No. 2 and 5 were deleted after amendment in the plaint.

The parties led their evidence and the learned trial Court vide its impugned judgment and decree, decided Issues No. 1, 3, 4, 6 in favour of the plaintiff and against the defendant and accordingly, the suit of the plaintiff for permanent prohibitory injunction was decreed and the relief was also granted that the structure already raised by the defendant shall be demolished by him.

On appeal, the learned Additional District Judge vide his impugned judgment and decree held that the plaintiff has failed to prove his ownership and possession of the whole of the suit land and, therefore, the findings of learned trial Court under Issue No. 1 were set aside. It was held that the plaintiff had acquired rights of ownership and possession in the Khata including disputed Khasra Number and the parties alongwith other co-sharers had been in possession of the suit land and, therefore, the appeal was allowed, but however the defendant was restrained from raising further construction on the suit land by issuance of relief of perpetual injunction till partition.

I have heard the learned counsel for the parties and have gone through the record of the case.

The appeal was admitted by this Court on the following substantial questions of law:-

Whether in the ancillary proceedings, the Ld. Lower Appellate Court could have set aside the order passed by the Director Consolidation exercising powers of the State Government when the jurisdiction of the Civil Court is specifically barred?

Whether the defendant can be granted substantive relief when there is no substantive suit or counter claim filed by him?

Whether the Ld. Lower Appellate Court could have given findings regarding Sale Deed without there being any challenge to the same?

Whether the findings recorded by the Ld. Lower Appellate Court are perverse?

The submissions made by the learned counsel for the appellant were that there was no challenge to the sale deed executed in favour of the plaintiff in the year 1981 and the plaintiff was claiming his title on the basis of the said sale deed and, therefore, the suit for declaration and injunction was rightly decreed by the learned trial Court. It was also submitted that no substantial relief could have been granted in favour of the defendant when he had not filed any suit or counter claim. The plea was also raised that an order passed by the Director Consolidation could not be set aside by the Civil Court since there was a specific bar u/s 57 of the Act regarding jurisdiction of the Civil Court. It was also submitted that the learned Appellate Court has failed to appreciate the affidavit given by the defendant in the year 1981 at the time of execution of the sale deed that the suit land was in exclusive possession of the vendor and the possession of the same was given to the plaintiff. Thus, it was submitted that the appeal may be allowed.

On the other hand, learned counsel for the respondent had supported the impugned judgment for the reasons given therein.

A perusal of the copy of the sale deed proved in evidence Ext. PA by the plaintiff shows that Lesar (previous owner) had sold 1/3rd share of his share in the Khata measuring 0-9-10 Bigha, which comes to 190/19243 in favour of the plaintiff. There was no reference to the copy of jamabandi prevalent at that time. A perusal of the copy of Missal Haquiat for the year 1987-88 Ext. PJ prepared after the sale deed shows that Khasra No. 66 measuring 0-9-10 Bigha was entered in the ownership of the defendant. A perusal of the copy of Missal Haquiat Ext. PK shows that out of 1195 shares Lesar (previous owner) was entered in the ownership of 1005 shares, while the plaintiff was entered in the ownership of 190 shares.

A perusal of the copy of mutation Ext. PE also shows that there is a reference to the sale deed dated 20.1.1981, vide which Lesar had sold his share 190/19238 in favour of the defendant. There is no copy of jamabandi on record to show that vendor Lesar was entered in exclusive possession and ownership of the disputed land sold to the plaintiff by way of sale deed dated 20.1.1981. The learned Appellate Court had considered the sale deed and had come to the right conclusion that the plaintiff had only purchased a share in the Khata and the plaintiff has failed to prove his ownership and possession of the whole of the suit land. The plaintiff could not purchase a specific share, since it was not recorded in exclusive possession of the previous owner.

Coming to the question that affidavits were wrongly relied upon by the learned trial Court and the findings of the learned Appellate Court, which did not rely upon the alleged affidavit executed by the defendant that the previous owner was in exclusive possession of the suit land. This affidavit was rightly not relied upon by the learned Appellate Court and on the basis of this affidavit it could not be concluded that the previous owner was in exclusive ownership and possession of the suit land. No substantial question of law arises in regard to these findings and these have not been rebutted by the appellant to show that these findings were incorrect in any manner.

Coming to the question that the plaintiff could not acquire the rights of ownership on the basis of the order passed by the Director Consolidation dated 3.11.1990 or that the Civil Court had no jurisdiction to decide this question, the learned Appellate Court had come to the conclusion in regard to the ownership of the plaintiff not having been proved exclusively in regard to the suit land and accordingly, no order of the Director Consolidation of Holdings, was being set aside or was under challenge by the plaintiff in any manner. The plaintiff had come up on the basis of the sale deed and the learned Appellate Court had rightly come to the conclusion that he had failed to prove his exclusive ownership and possession over the disputed Khasra Number. Therefore, the Civil Court had the jurisdiction to decide the question, since no orders were under challenge in the plaint and the learned Appellate Court had only made reference to the order of the Director Consolidation and had come to the right conclusion that the plaintiff could not acquire the rights of ownership of the whole suit land on the strength of the order dated 3.11.1990 passed by the Director Consolidation in favour of the plaintiff.

The learned Appellate Court had rightly granted the relief of injunction in favour of the plaintiff and as against the defendant restraining him from raising further construction on the suit land till the suit land was legally and equitably partitioned. There is no prayer in regard to the relief of demolition granted in favour of the plaintiff by the learned trial Court. There is no specific prayer in the appeal in this regard and those findings have not been specifically challenged by the plaintiff nor any substantial question of law has been framed in regard to those findings. In view of the above detailed discussion, I accordingly hold that there is no merit in the appeal filed by the appellant and the findings of learned Appellate Court are liable to be affirmed, which are affirmed accordingly. The appeal filed by the appellant is dismissed. However, the parties are directed to bear their own costs.