Yogender Pal Verma vs O.P. Vij

Sureshwar Thakur, J—The instant appeal is directed against the judgment and decree, rendered on 17.08.2002, in Civil Appeal No. 12-S/13 of 2002, by the learned District Judge, Solan, H.P., whereby, the latter partly allowed the appeal preferred before it by the plaintiff-respondent against the judgment and decree of 23.11.2001 rendered by the trial Court in Civil Suit No. 581/1 of 1994 whereby the suit of the plaintiff was dismissed.

The plaintiff-respondent had instituted a suit for permanent injunction against the defendant-appellant for restraining the defendant from interfering in the land and built up structure comprised in Khata/Khatauni No. 161/320 Khasra Nos. 262, 264, 267, 268, 269 kitas 5 measuring 211 sq. meters and Khata Khatauni No. 162/327 Khasra No. 263 measuring 195 sq. meters, situated in Mauja Thodo Solan, Tehsil and District Solan H.P. Besides, a further relief was reared in the plaint of the defendant being restrained from causing any type of damage to the suit property by changing its nature in any manner whatsoever either by himself or through his agents, servants, family members. The suit of the plaintiff was dismissed by the learned trial Court. The plaintiff was aggrieved by the judgment and decree of the learned trial Court, hence, instituted an appeal before the learned District Judge. The learned District Judge partly allowed the appeal preferred before him by the plaintiff-respondent inasmuch as it accorded in his favour a decree of permanent prohibitory injunction qua Khasra No. 263 only. Hence, in the operative part of the impugned judgment and decree of the learned Appellate Court the defendant-appellant was restrained from causing any type of damage whatsoever either by himself or through his agents, servants, family members, to the premises in possession of the plaintiff-tenant comprised in Khasra No. 263, situated in Mauza Thodo, Solan, H.P., till the plaintiff stands evicted there-from in accordance with law.

The brief facts of the case are that the plaintiff-respondent instituted a suit for permanent injunction pleading therein that the plaintiff is in possession of the land and built up structure comprised in Khata/Khatauni No. 161/320 Khasra Nos. 262, 264, 267, 268, 269 Kita 5 measuring 211 square meters and Khata Khatauni No. 162/327 Khasra No. 263 measuring 195 square meters situated in Mauza Thodo, Solan under Shri Rajan Sharma co-sharer as a tenant at the monthly rent of Rs. 30/- per month for the last 35 years and the plaintiff had been regularly depositing the said rent in the account of Shri Rajan Sharma in PNB, Solan. It has been contended that the defendant who had purchased the property bearing Khasra Nos. 244, 245, 246 and 265 part of Khata No. 161 from Smt. Asha Devi and other co-owner has started making interference in the peaceful possession and tenancy rights of the plaintiff without any right, title and interest. It has further been pleaded that the defendant has threatened to dispossess the plaintiff forcibly and illegally from the land and structure referred to in Para No. 1 of the plaint and without any rights, title and interest the defendant has further threatened to cause damage to the suit property. It has been pleaded that the defendant has no right to make interference in the suit property i.e. in the tenancy rights of the plaintiff and to cause any type of damage to the same and the defendant was requested by the plaintiff not to make interference in his lawful and peaceful possession qua the suit property as a tenant but of no avail and in this case if the defendant is not restrained from his illegal acts and designs the plaintiff shall suffer irreparable loss and injury for which monitory compensation would not be an adequate relief. It has further been pleaded that the plaintiff is in possession of the land and built up structure under Shri Rajan Sharma co-sharer as a tenant and had been regularly paying the rent to the owner and the defendant has no right, title or interest in the same and so he has no right to make any interference in the suit property and cause damage in any manner whatsoever, as such, there is a prima facie good case in favour of the plaintiff and against the defendant. It is also pleaded in the plaint that the balance of convenience is also in favour of the plaintiff and against the defendant as more mischief is likely to be caused if the defendant is not restrained from his illegal acts and designs, as compared to the mischief if he is so restrained from doing so by this Court by a decree of permanent injunction and prayer for the suit being decreed was sought before the learned trial Court.

The defendant-appellant contested the suit and filed written statement, wherein he took preliminary objection that the plaintiff is in possession of the land comprised in Khata No. 162, Khatauni No. 327 Khasra No. 263 measuring 195 square meters. The defendant contended that he is the owner in possession of the land comprised in Khasra No. 263/1 measuring 48 square meters and has nothing to do with the land comprised in Khasra No. 263/2 and the plaintiff has misrepresented the facts and has intentionally suppressed the factum of partition and of the status of the suit property as existing on the date of filing of the suit. It has been contended that Rajan Sharma is not the co-sharer with the defendant nor the plaintiff is a tenant qua Khasra No. 263/1 and the plaintiff has no right, title and interest in the land comprised in Khasra No. 263/1 whereupon he is raising construction. It has been contended that the defendant purchased the land comprised in Khasra Nos. 244, 245, 246, 265 and part of Khasra No. 263 and after the purchase legal and valid partition of the land which was jointly recorded in the name of the defendant and other co-sharers has taken place and after the partition the defendant is in exclusive possession of land comprised in Khasra No. 263/1 and it has been denied that the defendant is making any interference in the possession of the plaintiff as alleged in the para. It was denied that the plaintiff is in possession of any portion of land comprised in Khasra No. 263/1 measuring 48 square meters. It was also contended that he has no right, title or interest over the same and there is no question of dispossession of the plaintiff from the same and it has been denied that the defendant is doing any illegal act. It has been pleaded that the plaintiff has no right, title or interest over the land owned and possessed by the defendant so there is no question of any loss and damage to him on account of construction being raised by the defendant and the defendant is raising construction on his own land. However, it was contended that the plaintiff intends to harass the defendant with mala fide intention and there is no question of any loss or injury to the plaintiff as alleged and there is no structure of Rajan Sharma over the land owned by the defendant and it is denied that there is any balance of convenience in favour of the plaintiff and against the defendant and no loss or injury is likely to be caused to the plaintiff, if the suit is dismissed and on the contrary defendant will be deprived of user of his own land and no cause of action arose in favour of the plaintiff and against the defendant and a prayer for dismissal of the suit was sought for from the learned trial Court.

On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties in contest:-

Whether the plaintiff is entitled to the decree of permanent injunction, as alleged?

OPP.

Whether the defendant is owner in possession of the suit land. If so its effect?

OPD.

Whether the plaintiff has mis-represented the facts and has suppressed the material facts of partition and position existing at the spot. If so its effect.

OPD.

Relief.

On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff-respondent. In an appeal, preferred before the learned first Appellate Court by the plaintiff/respondent, against the judgment and decree of the learned trial Court, the learned first Appellate Court partly allowed the appeal inasmuch as a decree for permanent prohibitory injunction was granted in favour of the plaintiff-respondent and against the defendant-appellant qua Khasra No. 263 only inasmuch as the defendant-appellant was restrained from causing any type of damage in any manner whatsoever either by himself or through his agents, servants, family members to the premises in possession of the plaintiff-tenant comprised in Khasra No. 263 situated in Mauza Thodo, Solan, H.P., till the plaintiff is not evicted there-from in due process of law.

Now the defendant/appellant has instituted the instant Regular Second Appeal before this Court, assailing the findings, recorded in the impugned judgment and decree rendered by the learned first Appellate Court. When the appeal came up for admission on 4.12.2002, this Court, admitted the appeal instituted by the defendant-appellant, against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial questions of law:-

Whether the findings of the Lower Appellate Court holding the plaintiff-respondent to be in his settled possession of Khasra No. 263 based on no evidence and the result of misreading the pleadings and oral and documentary evidence?

Whether the Lower Appellate Court has misconstrued and misapplied the provisions of Section 35 of the Evidence Act in holding that the Defendant-appellant is a co-sharer with Smt. Asha Devi when such controversy was totally extraneous to the dispute involved in the suit?

Whether the Lower Appellate Court has ignored the admissions made by the plaintiff-respondent in his statement claiming no interest in Khasra No. 263/1 measuring 48 Sq. Mtrs. Purchased by the defendant-appellant? Is not the decree passed by the lower Appellate Court for injunction holding the plaintiff-respondent to be in settled possession of the same contrary to the evidence available on the record?

Substantial Questions of Law No. 1, 2 & 3.

The appellant-defendant had purchased under Ext. DW-1/A, a registered deed of conveyance, the share of Smt. Asha Devi in the suit property. The defendant-appellant had concerted to seek partition of the undivided holding by instituting an apposite application before the authority concerned. The application for partition of the undivided holding came to be allowed. In sequel, mutation No. 1102 was attested, whereupon Khasra No. 263/1 measuring 48 Sq. meters was exclusively allotted in favour of the defendant-appellant. However, the partition of the undivided holding which squealed attestation of mutation No. 1102 whereupon Khasra No. 263/1 measuring 48 sq. meters was exclusively allotted in favour of defendant-appellant, stood set-aside by the SDM, Solan. The effect thereof is that exactly the defendant-appellant is a co-sharer in the undivided holding along with other co-owners. The capacity in which and the extent to which the plaintiff-respondent holds the suit property is garnerable from Ext. P-1. Ext. P-1 is the Jamabandi qua Khasra No. 263/1 for the years 1991-92. In its possession column, the names of Rajan Sharma and of his tenant exist. The factum of the plaintiff-respondent being previously the tenant of Rajan Sharma and now a tenant of Anil and Ajay, who purchased the share of Rajan Sharma in the suit property stands in the cross examination of the defendant-appellant admitted by the latter. Moreover, the existence of a deposition in the examination-in-chief of the plaintiff communicating the fact of his being a tenant in the second storey of the building nomenclatured as ''Morni Niwas'' has not been concerted to, during the cross-examination of the plaintiff be shred apart by the learned counsel for the defendant-appellant, by putting apposite suggestions to him for eliciting a response in contradiction to the factum aforesaid deposed by the plaintiff in his examination-in-chief. Omission of an endeavor by the learned counsel for the appellant-defendant to shred apart the occurrence of the aforesaid communication in the examination-in-chief of the plaintiff, fosters an inference that the defendant-appellant concedes to the factum of the plaintiff-respondent holding possession of the second storey of building nomenclatured as ''Morni Niwas''. Cumulatively, given the portrayals in Ext. P-1 and the admission in the cross-examination of the defendant-appellant of the plaintiff being a tenant in a portion of building nomenclatured as ''Morni Niwas'' construed in entwinement with the learned counsel for the defendant-appellant omitting to cross examine the plaintiff qua a communication in his examination-in-chief of his holding possession of the second storey of building christened as ''Morni Niwas'' upsurges an inevitable inference that, as such the plaintiff-respondent holds possession of a portion of the building christened as ''Morni Niwas'' as a tenant under Rajan Sharma or under the alienees of the latter. Apparently, as manifested by a perusal of the judgment and decree under appeal of the learned counsel for the appellant therein and the respondent herein having under a statement recorded in writing abandoned his relief qua Khasra Nos. 262, 264, 267, 268, 269 Kitas 5 measuring 211 square meters rather his confining his claim only qua Khasra No. 263 which for the reasons aforesaid stands un-partitioned, necessarily then and in the face of a statement existing in the cross-examination of PW-1 that he has no objection to the defendant-appellant carrying out/raising construction on land other than Khasra No. 263 aforesaid, the latter Khasra Number, hence, alone comprises the bone of contention inter-se the parties at lis. However, given the revelation in Ext. P-1 of Rajan Sharma and his tenant holding possession of a part thereof which factum stands acquiesced for the reasons aforesaid by the defendant-appellant. As a concomitant then, the possession of the second storey of building christened as ''Morni Niwas'' existing on undivided Khasra No. 263 of the plaintiff-respondent, which factum too, for the reasons aforesaid, stands un-impeached by the defendant-appellant, has to be vindicated against any unwarranted onslaughts thereon at the instance of the defendant-appellant especially when the Khasra No. aforesaid stands yet un-partitioned. Only on partition of Khasra No. 263 whereupon the building christened as ''Morni Niwas'' is located, the second storey whereof is uncontrovertibly in possession of the plaintiff-respondent and its having come to be exclusively allotted to the defendant-appellant would the latter have a cause of action to initiate proceedings in accordance with law to evict the plaintiff-respondent there-from. In other words, any interference yet or exactly at the instance of the defendant-appellant in the peaceful possession of the plaintiff-respondent in the second storey of building christened as ''Morni Niwas'' would be grossly unwarranted. In aftermath, the decree of injunction rendered by the first Appellate Court does not necessitate any interference. The substantial questions of law are accordingly answered.

The result of the above discussion is that the appeal, preferred by the defendant/appellant, is dismissed and the judgment and decree rendered by the learned District Judge, Solan, is maintained and affirmed. Pending application(s), if any, shall also stand disposed of. The parties are left to bear their own costs. The records be sent back forthwith.