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2017 Supreme(HP) 1055
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sandeep Sharma, J.
Shankar and Others – Appellants
Versus
Parkash Kaur and Others – Respondents
Regular Second Appeal No. 229 of 2006
Decided On : 01-12-2017
For the Appellant : Megha Kapur Gautam.
For the Respondent: Ajay Sharma.
The demarcation reports and evidence of possession were crucial in determining the ownership and possession of the disputed land.
Headnote:
Injunction - Land Dispute - H.P. Consolidation of Holdings and Prevention of Fragmentation Act, 1971 - [Section 100, Code of Civil Procedure] - [H.P. Consolidation of Holdings and Prevention of Fragmentation Act, 1971] - [Summary: The court discussed the ownership and possession of the plaintiff over the disputed land, the demarcation reports, and the evidence adduced by both parties. The court upheld the judgment of the first appellate court, emphasizing that the demarcation reports supported the plaintiff's possession of the land, and there was no evidence to prove that the demarcation was not carried out in accordance with the law. The court found no illegality or infirmity in the judgment passed by the first appellate court and dismissed the appeal.]
Fact of the Case:
The plaintiff claimed ownership and possession of the disputed land and filed a suit for permanent injunction against the defendants. The defendants refuted the claim and alleged that the plaintiff had prepared false documents. The trial court dismissed the suit, but the first appellate court decreed it in favor of the plaintiff.
Finding of the Court:
The court upheld the judgment of the first appellate court, emphasizing the demarcation reports supporting the plaintiff's possession of the land and the lack of evidence to prove that the demarcation was not carried out in accordance with the law.
Issues: Ownership and possession of the disputed land, maintainability of the suit, cause of action, jurisdiction, entitlement for relief of permanent prohibitory injunction.
Ratio Decidendi: The demarcation reports supported the plaintiff's possession of the land, and there was no evidence to prove that the demarcation was not carried out in accordance with the law.
Final Decision: The court found no illegality or infirmity in the judgment passed by the first appellate court and dismissed the appeal.
Sandeep Sharma, J.
1. This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 16.03.2006, passed by learned Additional District Judge, Una, District Una in Civil Appeal No. 77/2002, reversing the judgment and decree dated 28.08.2002, passed by learned Sub Judge 1st Class-(II), Una, H.P. whereby suit of the plaintiff was dismissed.
2. Briefly stated facts of the case, as emerged from the record, are that Shri Sarwan Singh, the predecessor-in-interest of the respondents (hereinafter referred to as the plaintiff) averred that he is owner in possession of the land measuring 3 Kanals 10 Marlas bearing Khewat No. 929 min, Khatauni No. 1633, Khasra No. 3196 (old No. 9216/3203/1, measuring 2 Kanals) and Khewat No. 929 min, Khatauni No. 1631, Khasra No. 3197 (old No. 9217/3203/2), as per Jamabandi for the year 1986-87, situated in village Haroli, Tehsil & District Una, H.P. (hereinafter referred to as the suit land) and has constructed his abadies and several shops over the same. It is averred by the plaintiff that he has leased one shop to defendant No. 1 in Khasra No. 3196 and the other shops are on lease with other persons. It is further averred that the defendants have started threatening to cause interference in the suit land and therefore, the plaintiff has prayed for grant of injunction restraining the defendants from interfering in the suit land or dispossessing the plaintiff and in the alternative suit for possession in case the plaintiff is dispossessed by the defendants during the pendency of the suit. In the aforesaid background, the plaintiff filed a suit for permanent injunction against the defendants.
3. Defendants, by way of detailed written statement, refuted the aforesaid claim having been put forth on behalf of the plaintiff and has taken the preliminary objections of maintainability, bar under section 57 of the H.P. Consolidation of Holdings and Prevention of Fragmentation Act, 1971. On merits, the defendants have alleged that they have no concern with Khasra No. 3197. It is averred by the defendants that defendant No. 1 is coming in possession of the land measuring 2 Kanalas comprised of Khasra No. 9216/3203 min as a tenant on payment of Chakota since long time and has also constructed his abadies over this land, which abuts the main Una-Haroli road and is valuable piece of land. It is further averred that defendant No. 1 has also built four shops over this land and one of his son Lekh Raj is running a maniari shop and the remaining area is being used as Bartan and the plaintiff has no concern with this land and shop of the defendant No. 1. It is also averred by the defendants that the land comprising of Khasra No. 9216/3203/1 min has been shown as "Kharkana" since 1973 to 1986 in the revenue papers. It is the claim of the defendants that the plaintiff has got prepared a false Jamabandi for the year 1986-87 from the consolidation staff showing the abadi whereas, Khasra Girdawari shows the land to be vacant. As per the defendants, the Tatima, got prepared by the plaintiff, in which the abadi has been shown, is also false. With the aforesaid submissions, the defendants prayed for dismissal of the suit of the plaintiff.
4. By way of replication, the plaintiff, while denying the allegations made in the written statement, reaffirmed the averments made in the plaint and controverted the contrary averments made in the written statement.
5. On the pleadings of the parties, the learned trial Court framed the following issues for determination:-
"1. Whether the plaintiff is owner in possession of the suit property/land? OPP.
2. Whether the suit is not maintainable in the present form? OPD.
3. Whether the plaintiff has got no cause of action to file this suit? OPD.
4. Whether the plaintiff has concealed true facts, if so, its effect? OPD.
4-A. Whether this Court has no jurisdiction? OPD.
4-B. Whether the plaintiff is entitled for relief of permanent pr
