Concurrent findings of facts and law can only be interfered with if found to be perverse.

JUDGMENT :

By way of instant Regular Second Appeal, filed under S. 100 CPC, challenge has been laid to judgment and decree dated 31.10.2019 passed by learned District Judge, Sirmaur at Nahan, Himachal Pradesh in Civil Appeal No. 20-CA/13 of 2019, affirming judgment and decree dated 27.2.2019 passed by learned Civil Judge Nahan, District Sirmaur, Himachal Pradesh, in Civil Suit No. 109/1 of 2014, whereby suit for declaration and permanent prohibitory injunction restraining the applicants/defendants (hereinafter, ‘defendants’) from causing obstruction in the use of parking below residential accommodation of the respondents/plaintiffs (hereinafter, ‘plaintiffs’) came to be decreed.

2. Precisely, the facts of the case, as emerge from the record, are that that the plaintiffs filed a suit for declaration and permanent prohibitory injunction against the defendants inter alia on the ground that defendant No.1, who was owner-in-possession of Khewat Khatauni No. 373/588, Khasra No. 2228/103/1 measuring 119.86 square metres situate at Mohalla Chakrera, Nahan, District Sirmaur, Himachal Pradesh (old), Khewat Khatauni No. 412/630, Khasra No. 2397/2228/103 (new) (hereinafter, ‘suit land’) constructed residential building containing flats on the basis of map duly sanctioned by Municipal Committee Nahan. Plaintiffs claimed in the plaint that the ground floor was sanctioned as parking floor for the owners and they purchased flats vide registered sale deeds with parking facility and defendant No.1 has no right, title or interest to sell or lease the ground floor of suit property. It is averred by the plaintiffs that defendant No.1 illegaly and unauthorizedly entered into lease deed with defendant No.2 Dev Raj Saini, leasing out parking area to him for the purpose of catering business and as such, he be restrained from causing any type of interference in ground floor of suit property and decree of mandatory injunction be also passed to mark parking area of owners in the suit building.

3. Aforesaid claim of the plaintiffs came to be resisted by defendant No.1 on the ground that he was owner of suit land and therefore, had every right, title and interest over the same including the ground floor. Defendant No.1 averred in the written statement that the suit was misconceived and plaintiffs have no right, title or interest over the over the suit property and ground floor of the building. While fairly admitting the factum with regard to sale of flats made in favour of plaintiffs, defendant No.1 claimed that at no point of time he had sold ground floor to the plaintiffs and as such, they cannot estop him from leasing out that area to defendant No.2. On the basis of aforesaid pleadings, learned court below framed following issues:

(1) Whether the ground floor of the building owned by defendant No.1 was sanctioned for parking to the falt owners including the plaintiffs, as alleged? OPP

(2) Whether the defendant No.1 has no right, title or interest in the building after selling the entire floors including the ground for parking, as alleged? OPP

(3) Whether the lease of ground floor by defendant No.1 in favour of defendant No.2 is illegal, null and void and is not binding upon the plaintiffs and other flat owners and liable to be declared so, as alleged, if so its effect? OPP

(4) Whether the suit is not maintainable in the present form, as alleged? OPD

(5) Whether the plaintiffs have no cause of action to file the present suit, as alleged? OPD

(6) Whether the suit is improperly valued for the purposes of court fee and jurisdiction, as alleged? OPD

(7) Whether the plaintiffs have no right, title or interest over the in the suit land and ground floor of building, as alleged? OPD

(8) Whether the lease deed dated 09-07-2014 in favour of defendant No.2 is legal and valid and conforms absolute rights, title and interest in favour of defendant No.2, if so its effect?

(9) Whether the plaintiffs have not come to the court with clean hands, as alleged? OPD

(10) Relief.

4. Subseq