Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(HP) 799

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sandeep Sharma, J.
Smt. Seema Devi - Petitioner
Versus
Anoop Kumar and others - Respondents
CMPMO No. 275 of 2020
Decided On : 15-12-2022

Advocates:
Advocate Appeared:
For the Petitioner:Ms. Devyani Sharma, Advocate.
For the Respondent:Mr. Sudhir Thakur, Senior Advocate with Mr. Karun Negi, Advocate

Point of Law: Disposal of other questions.-- (1) Where there is a question as to property to be divided, or the mode of making a partition, Revenue Officer shall, after such inquiry as he deems necessary, record an order stating his decision on question and his reasons for decision.

Headnote:
Constitution of India, 1950 – Article 227 – Code of Civil Procedure 1908 - Order XXXIX, rules 1 and 2, Order II, rule 2 - Hindu Succession Act, 1956 - Punjab Tenancy Act, 1887 - Land Revenue Act, 1996 - Sections 110 to 126 - Land - Construction - Grant Injunction - Challenge has been laid to judgment whereby an application filed by respondent No.1/plaintiff restraining petitioner/defendant No.1 from raising construction on suit land during pendency of suit - Existence of prima facie right and infraction of enjoyment of property or right is a condition precedent for grant of temporary injunction – Para 27.
Finding of the Court:
Court further has to satisfy that non-interference by court would result in "irreparable injury" to party seeking relief and that there is no other remedy available to party except one to grant injunction and he needs protection from consequences of apprehended injury or dispossession - Irreparable injury, however, does not mean that there must be no physical possibility of repairing injury but means only that Injury must be a material one, namely one that cannot be adequately compensated by way of damages - Balance of convenience must be in favour of granting injunction - Court while granting or refusing to grant injunction is expected to exercise sound judicial discretion to find amount of substantial mischief or injury which is likely to be caused to parties if injunction is refused and compare it with that which is likely to be caused to other side if injunction is granted - If on weighing competing possibilities or probabilities of likelihood of injury and if court considers that pending suit, subject matter should be maintained in status quo, an injunction would be issued - Court has to exercise discretion in granting or refusing relief of ad interim injunction pending suit - In view of detailed discussion made herein above and law taken into consideration, this court finds merit in present petition and judgment in Civil Suit are set aside - Defendant No.1 is permitted to raise construction on land in question, subject to furnishing a fresh undertaking before learned trial Court to effect that in event of suit of plaintiff being decreed, she shall hand over vacant possession of suit land to plaintiff.
Result: Petition allowed.

JUDGMENT :

Sandeep Sharma, J.

By way of instant petition filed under Art. 227 of the Constitution of India, challenge has been laid to judgment dated 7.3.2020 passed by learned Additional District Judge, Nalagarh, District Solan, Himachal Pradesh in Civil Misc. Appeal No. 18-NL/14 of 2019 titled Seema Devi v. Anup Kumar, affirming the order dated 20.6.2019 passed by, learned Senior Civil Judge, Nalagarh, District Solan, Himachal Pradesh in CMA No. 60/6 of 2019 in Civil Suit No. 86/1 of 2019, whereby an application filed by respondent No.1/plaintiff (hereinafter, ‘plaintiff’) under Order XXXIX, rules 1 and 2 CPC restraining the petitioner/defendant No.1 (hereinafter, ‘defendant No.1’) from raising construction on the suit land during the pendency of the suit, came to be allowed.

2. For having bird’s eye view of the matter, facts shorn of unnecessary details and relevant for the adjudication of the case at hand are that the plaintiff filed a suit for permanent prohibitory injunction in the court of learned Senior Civil Judge, Nalagarh, averring therein that the land measuring 1-14 Bigha out of total land measuring 8-14 Bigha bearing Khasra Nos. 107 and 108, comprised in Khewat Khatauni Nos. 52/53, situate in Village Buranwala, Tehsil Baddi, District Solan, Himachal Pradesh as per Jamabandi for the year 2016 (hereinafter, ‘suit land’)is joint property of the plaintiff, defendants and other co-sharers. Plaintiff set up a case that the parties to the suit are Hindus, governed by Hindu Succession Act and suit land was owned and possessed by one Ram Dass, grandfather of the plaintiff and after his death, same was inherited by father of the plaintiff and defendants Nos. 2 to 4 and husband of defendant No.5, namely Shri Jeet Ram. Aforesaid Jeet Ram died inteste, leaving behind plaintiff and defendants Nos. 3 to 5 as his class I heirs. Plaintiff claimed that the suit land came into hands of Jeet Ram as ancestral and coparcenery property as the same was inherited by him from his father, Ram Dass. Plaintiff further claimed that since the suit land was joint between the cosharers/coparceners and legal heirs of Jeet Ram, sale deed No. 60, dated 8.1.2018 of undivided share of defendant No.2 in favour of defendant No.1 and mutation No. 738 dated 11.1.2018 sanctioned on the basis of same is wrong, illegal, null and void. Plaintiff averred that defendant No.1 threatened him to interfere in the suit land and to disposses her therefrom forcibly on the basis of illegal sale deed and revenue entries, whereas, plaintiff is co-owner in possession of suit land and no legal title has been transferred in favour of defendant No.1. Alongwith the plaint, plaintiff filed an application under Order XXXIX, rules 1 and 2 CPC, stating therein that since he is co-owner-inpossession of the suit land and suit land is joint inter se parties coupled with the fact that defendant No.1 has extended threats to dispossess him forcibly on account sale deed No. 60, dated 8.1.2018, defendant No.1 is required to be restrained from interfering in the suit land.

3. Aforesaid suit as well as application for stay, having been filed by the plaintiff, came to be contested by defendant No.1, who while filing written statement to the plaint and reply to stay application, pleaded that the plaintiff has no cause of action or locus standi to file the application, especially when it is not in dispute that the suit land stands partitioned with mutual consent of the parties. Defendant No.1 claimed that the suit land was partitioned inter se parties with mutual consent of the parties and at that time, no objection, if any, was ever raised by the plaintiff. Defendant No.1 alleged that the plaintiff never raised question of title before Assistant Collector 1st Grade, Baddi, during partition proceedings, whereafter, she purchased the suit land after making due enquiries and payment of sale consideration. Defendant No.1 pleaded that the plaintiff and defendants Nos. 3 to 5 were never ready to purc