Back
2017 Supreme(HP) 879
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Chander Bhusan Barowalia, J.
Mohan Lal – Appellant
Versus
Ramesh Chand – Respondent
RSA No. 470 of 2007
Decided On : 25-11-2017
For the Appellant :Mr. R.K. Sharma, Sr. Advocate with Ms. Anita Parmar, Advocate.
For the Respondent:Mr. Ajay Sharma, Advocate.
The main legal point established in the judgment is the principle of joint possession and the rights of co-sharers under the Specific Relief Act.
Headnote:
Specific Relief Act - Injunction - Sections 38 & 39 - [38, 39] - The court discussed the rights of co-sharers and the principles of joint possession, emphasizing that a co-owner has an interest in the entire property and that possession of joint property by one co-owner is deemed to be on behalf of all. The court also highlighted the importance of respecting the rights and sentiments of co-owners and the duty of the eldest co-owner to mediate disputes among co-owners.
Fact of the Case:
The plaintiff filed a suit against the defendant for perpetual and prohibitory injunction, claiming that the defendant be restrained from raising construction on a specific piece of land and blocking a passage. The defendant resisted the suit, claiming ownership and the right to raise construction on the land.
Finding of the Court:
The court found that the suit land was jointly owned and possessed by the parties, and the defendant's attempt to raise construction on the land to block the passage of the plaintiff was impermissible. The court also held that the plaintiff's claim was supported by the necessary description of the property and the evidence on record.
Issues: The issues included the entitlement of the plaintiff for injunction, the plaintiff's locus standi to file the suit, and whether the suit was bad for better particulars.
Ratio Decidendi: The court emphasized the rights of co-sharers and the principles of joint possession, highlighting that a co-owner has an interest in the entire property and that possession of joint property by one co-owner is deemed to be on behalf of all. The court also stressed the importance of respecting the rights and sentiments of co-owners and the duty of the eldest co-owner to mediate disputes among co-owners.
Final Decision: The appeal was dismissed, and the parties were left to bear their own costs.
Chander Bhusan Barowalia, J.
The present regular second appeal is maintained by the appellant, who was the defendant before the learned Trial Court (hereinafter to be called as “the defendant”), laying challenge to the judgment and decree, dated 31.07.2007, passed by learned District Judge, Kangra at Dharamshala, in Civil Appeal No. 30-G/XIII/2005, whereby judgment and decree, dated 31.01.2005, passed by the learned Civil Judge (Jr. Division), Court No. 2, Dehra, District Kangra, H.P., in Civil Suit No. 137 of 2000, was set aside.
2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the respondent, who was the plaintiff before the learned Trial Court (hereinafter to be called as “the plaintiff”) instituted a suit against the defendant, under Sections 38 & 39 of the Specific Relief Act for perpetual and prohibitory injunction. He prayed that the defendant be restrained from digging foundations, raising construction and changing nature of the land, shown in site plan, marked ABCDEFGH and also from blocking the path, as shown in pink colour, in the site plan, comprised in Khata No. 158 min, Khatauni No. 164 min, Khasra No. 384, measuring 0-07-29 hectares, as described in the copy of Jamabandi for the year 1997-98, situated in Mohal and Mauza Kohasan, Tehsil Dehra, District Kangra, H.P. (hereinafter to the called as “the suit land”). The plaintiff has also claimed a decree for mandatory injunction, directing the defendant to restore the land to its original position by demolishing the structure, if the defendant succeeded in raising construction over the said portion of the land.
3. By filing written statement, the defendant resisted and contested the suit of the plaintiff and raised preliminary objections qua maintainability and estoppel. On merits, the defendant has admitted the suit land to be Abadi Deh, however he termed rest of the averments made in the plaint to be incorrect. As per the defendant, the plaintiff is not a co-sharer in the suit land nor does any path passes through the suit land. He has contended that his house is in existence over the suit land, thus he has every right to raise construction thereupon. He has further contended that the foundation of his house in the suit land has been laid down prior to the filing of the present suit, without there being any objection on the part of the plaintiff. As per the defendant, the suit land is Abadi land, which was old Abadi of the defendant, on which the new foundation has been raised by him. Lastly, the defendant prayed for dismissal of the suit.
4. The learned Trial Court on 20.12.2001 framed the following issues for determination and adjudication:
“1. Whether plaintiff is entitled for permanent injunction, as prayed for? OPP
2. Whether plaintiff is entitled for mandatory injunction, as prayed for? OPP
3. Whether plaintiff has no locus standi to file present suit? OPD
4. Whether plaintiff is estopped by his act and conduct from filing the present suit? OPD
5. Whether suit is bad for better particulars? OPD
6. Relief.”
5. After deciding issues No. 1 to 5 in negative, the suit of the plaintiff was dismissed. Subsequently, the plaintiff maintained an appeal before the learned first Appellate Court, which was allowed. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law:
“1. Whether the learned first Appellate Court has not committed grave error in completely ignoring the evidence and report of the Local Commissioner-PW-2?
2. Whether the plaintiff’s suit was not liable to be dismissed as there was incomplete description of the property?”
6. Learned Senior Counsel appearing on behalf of the appellant has argued that the judgment and decree, passed by the learned first Appellate Court is perverse and without appreciating the facts, which have come on record and the same is required to be set aside. On the other hand learned Counsel for the respondent has
