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2006 Supreme(J&K) 282
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Hakim Imtiyaz Hussain, J.
Kishori Lal & Ors. - Appellant
Versus
Chaman Lal & Ors. - Respondent
CSA No. 19/1988, CSA No. 20/1988 And CIA No. 5/1992
Decided On : 17 November, 2006
Advocate For Appellant: V.R. Wazir
Advocate For Respondent: L.K. Sharma
The main legal point established in the judgment is the application of the Common Land (Regulation) Act and the rights of co-sharers in abadi deh land. The court emphasized the need for equitable conduct and upheld the rights of co-sharers to prevent the alteration of joint property.
Headnote:
Civil Second Appeal - Dispute over abadi deh land - Common Land (Regulation) Act - Permanent injunction granted to restrain construction and restore entrance gate and passage - Defendant directed to remove structure and band saw machine - Appeal filed on questions of law - Judgment maintained with modification - Supreme Court remits case for fresh consideration after framing appropriate substantial questions of law - Substantial questions of law framed - Court considers matter and upholds judgment partially - Relief (iii) set aside
Fact of the Case:
The dispute arose over a piece of abadi deh land in Taraf Tajwal, Kathua, which belonged to Kanshi Ram and devolved upon his sons. The plaintiff, Madan Gopal, filed suits for permanent injunction against his uncle and cousins, alleging illegal construction and installation of a saw machine on the land. The trial court dismissed the suits, but the 1st Appellate Court decreed the suits, granting reliefs in favor of the plaintiff. The legal representatives of the defendant filed a Civil Second Appeal on questions of law.
Finding of the Court:
The court upheld the judgment with a slight modification, maintaining the decree of permanent injunction and directing the defendant to restore the entrance gate and passage of the suit land. However, the decree directing the removal of the structure and band saw machine was set aside.
Issues: The substantial questions of law framed by the court included issues related to ownership, admissions in previous suits, and the applicability of the Common Land (Regulation) Act. The court also considered the construction made by a tenant, the rights of co-owners, and the jurisdiction of the court over the disputed land.
Ratio Decidendi: The court found that the Common Land (Regulation) Act did not apply to the case, as the land in question was not used for common or public purposes. The court also held that the plaintiff's specific mention of the land in the plaint and the appended site plan were sufficient to identify the property, despite the non-mention of a survey number. Additionally, the court emphasized the rights of co-sharers in abadi deh land and the need for equitable conduct.
Final Decision: The court partially upheld the judgment, maintaining the reliefs of permanent injunction and restoration of the entrance gate and passage, but setting aside the decree directing the removal of the structure and band saw machine. The judgment disposed of the Civil Second Appeal, with no order as to costs.
The facts relevant for the disposal of the present appeal are as under:
2. The dispute between the parties is over a piece of abadi deh land situate in Taraf Tajwal, Tehsil Kathua. The land belonged to one Kanshi Ram. Kanshi Ram had three sons namely Nathu Ram, Ram Rattan and Munshi Ram. On Kanshi Rams death the land devolved upon his sons. Nathu Ram and Munshi Ram too have died.
Nathu Rams son namely, Madan Gopal filed a suit for permanent injunction against his uncle Ram Rattan (D-l) and his cousins namely Tilak Ram (D-2) Kapil Dev (D-3) and Pushpa (D-4), children of Munshi Ram. He alleged that he and defendants-1 to 4 were the owners of Abadi deh land under Khasra No. 119 and 120 situate in Taraf Tajwal, Kathua. The land had an entrance and passage at Point CB shown in the sketch plan appended with the plaint. Plaintiffs grievance was that defendant-1, who is co-sharer in the land in dispute along with plaintiff and defendants 2 to 4, was proposing to build shops on the land marked 4CB. He has allowed defendant-5 namely Gur Prakash to install a sawing machine and electric power was being requisitioned to work it at spot market A shown in the site plan, which action, according to the plaintiff, was illegal being against the wishes of other co-sharers. The plaintiff further alleged that defendant-1 had no right to alter the position on spot by constructing shops or raising other structures on spot CB and allowing defendant-5 to work and install sawing machine on the suit land. After some time the plaintiff filed another civil suit against the defendants on the same subject matter. The second suit was filed by the plaintiff seeking permanent injunction restraining the defendants from changing the nature of the suit land or raising any construction or transferring the same to the detriment of the plaintiff.
3. The plaintiff, thus contended that defendant-1, Ram Rattan was blocking the passage to the property at point market "CB shown in the site plan annexed with the plaint and was going to raise construction on the land. He, therefore, prayed for a decree of permanent injunction restraining the defendants from blocking the passage and also restraining him from installing a Saw Machine on the land.
4. Defendants resisted the plaintiffs suits on the ground that he had no locus stand to file it, as he was not in possession of the property in dispute. According to them, the defendants and his sons were the owners of the land as they were in possession of it for more than 12 years. Defendant-5 alleged that he had taken the premises on rent @ Rs. 100 per month under a Rent Deed executed on 13th of May, 1968 and since then he is running his business on the land.
5. The trial court framed as many as nine issues in the case. After taking the evidence led by the parties, the trial court disposed of both the suits by a common judgment on 11th of April, 1983. The trial court dismissed both the suits holding that the plaintiff was not in possession of the suit land and that it was established that on the date of institution of the suit property, the same was joint, so the plaintiff had no cause of action to file the suits.
6. On an appeal filed by the plaintiff, the 1st Appellate Court (District Judge, Kathua) allowed the same and set aside the judgment and decree passed by the trial court no the ground that the trial court had not properly appreciated the issue raised in the case and that the case has been dealt with by the trial Court in a slip shod manner. The real question in controversy between the parties, according to the 1st Appellate Court, was whether defendant-1 was going to construct the shops on the suit land and defendant-5 making preparation to install a saw machine over a portion of the suit property in connivance with de
