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2015 Supreme(HP) 1631
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sanjay Karol, J.
Vijay Kumar - Appellant
Versus
Prem Chand - Respondent
RSA No. 1 of 2015
Decided On : 16-09-2015
For the Appellant :Ramakant Sharma, Advocate.
For the Respondent:Sanjeev Bhushan, Senior Advocate, with Abhilasha Kaundal, Advocate.
The acknowledgment of rights in the partition order and revenue records influenced the court's decision to affirm the plaintiff's entitlement to permanent prohibitory injunction.
Headnote:
Path Rights - Property Dispute - The court affirmed the plaintiff's entitlement to permanent prohibitory injunction to restrain the defendant from obstructing the path on the suit land, based on the acknowledgment of the right of egress and ingress reserved to the plaintiff through the land in the partition order and revenue records.
Fact of the Case:
The plaintiff filed a suit for permanent prohibitory injunction and mandatory injunction, alleging that the defendant threatened to block the path on the suit land, which was jointly owned and got partitioned, reserving the right of passage to the plaintiff.
Finding of the Court:
The trial court decreed the suit partly in favor of the plaintiff, granting permanent prohibitory injunction but declining mandatory injunction. The lower appellate court affirmed the findings of fact, judgment, and decree. The defendant's appeal was dismissed by the court.
Issues: The issues included the entitlement of the plaintiff for injunction, maintainability of the suit, cause of action, estoppel, locus standi, non-joinder of necessary parties, and concealment of material facts.
Ratio Decidendi: The court affirmed the plaintiff's entitlement to permanent prohibitory injunction based on the acknowledgment of the right of egress and ingress reserved to the plaintiff through the land in the partition order and revenue records.
Final Decision: The appeal was dismissed, and the plaintiff's entitlement to permanent prohibitory injunction was affirmed.
Sanjay Karol, J.
Defendant-appellant Vijay Kumar, hereinafter referred to as the defendant, has filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 8.10.2014, passed by the Additional District Judge(II), Kangra at Dharamshala, Himachal Pradesh, in Civil Appeal No.71-G/13/12, titled as Vijay Kumar v. Prem Chand, whereby judgment and decree dated 21.5.2012, passed by the Civil Judge (Junior Division), Court No.II, Dehra, District Kangra, Himachal Pradesh, in Civil Suit No.164/II/2009, titled as Prem Chand v. Vijay Kumar, stands affirmed.
2. Plaintiff-respondent Prem Chand, hereinafter referred to as the plaintiff, filed a suit for permanent prohibitory injunction and in the alternative for mandatory injunction, alleging that the land comprising Khasra Nos.773, 767, Khata No.77 min, Khatauni No.98 min, measuring 0-11-69 HM, situate in Mohal Basdi, Mauza Ghangesu, Tehhsil Jawalamukhi, District Kangra, Himachal Pradesh, hereinafter referred to the as the suit land, is owned and possessed by the defendant and his family members. Through the Meend (edge) of this land, a path (Lal Lakeer Rasta) leads to the land comprised in Khasra No.769, Khata No.78 min, which is owned and possessed by the plaintiff. It is alleged by the plaintiff that his land and the suit land was joint and was got partitioned by filing partition proceedings, being Case No.86TK, 2003, titled as Babu Ram v. Prem Chand, decided on 8.12.2003. In the order of partition also, the path stands mentioned upon the Meend of Khasra Nos.773 and 767 (suit land). The defendant is threatening to block the path by raising construction and has also stacked construction material over the suit land.
3. Defendant contested the suit by filing written statement. Besides taking several preliminary objections, he has denied existence of any path over the suit land. He has also stated that there existed an old cow shed over the suit land, which fell during heavy rains and it is only on the old site that he has started raising construction.
4. On the pleadings of the parties, trial Court framed the following issues:
1. Whether plaintiff is entitled for permanent prohibitory injunction, as prayed for? OPP
2. Whether in the alternative plaintiff is entitled for mandatory injunction, as claimed? OPP
3. Whether suit is not maintainable? OPD
4. Whether plaintiff has no cause of action? OPD
5. Whether plaintiff is estopped by his act, conduct and acquiescence from filing the suit? OPD
6. Whether plaintiff has no locus standi to file the suit? OPD
7. Whether suit is bad for non-joinder of necessary parties, as alleged? OPD
8. Whether plaintiff has concealed material facts from the Court, if so its effect? OPD
9. Whether suit is not property valued, if so its effect? OPD
10. Relief.
5. Trial Court decreed the suit in the following terms:
“Judged in the light of my findings on issue Nos. 1 to 9 above, the suit of the plaintiff partly succeeds and is hereby partly decreed. The plaintiff is held entitled for the permanent prohibitory injunction, restraining the defendant from raising construction, blocking the path in the meend of suit land comprised in Khasra No.773, 767 of khata No.77 min, Khatauni No.98 min situated in Mohal Basdi, Mauza Ghangesu, Tehsil Jawalamukhi, District Kangra-HP. However, the relief of mandatory injunction is declined. In view of the peculiar facts and circumstances of the case, the parties are left to bear their own costs. Decree-sheet be drawn up accordingly. File after due completion be consigned to Recordroom.”
6. Findings of fact, judgment and decree, so passed by the trial Court, stand affirmed by the lower appellate Court.
7. Having heard learned counsel for the parties, I am of the considered view that no case for interference is made out. No question of law, much-less substantial question of law, arises for consideration in the present appeal.
8. On the issue with regard to existence of path ov
