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UTTARAKHAND HIGH COURT
Prafulla C.Pant, J.
Bimla and Others -Appellant
Versus
Mohd.Saleem and Others -Respondent
S.A. No. 168 of 2001
Decided On : 4-7-2013
Specific Relief Act - Property Dispute - Section 41, Specific Relief Act, 1963 - The court discussed the applicability of Section 41(h) of the Specific Relief Act, 1963, and the issue of maintenance of a suit for mandatory injunction for demolition of construction against a co-sharer.
Fact of the Case:
The plaintiffs filed a suit seeking injunction and mandatory injunction for removal of construction allegedly raised by the defendants. The trial court decreed the suit in favor of the plaintiffs, and the appellate court affirmed the decision.
Finding of the Court:
The court found that the suit was not barred by Section 41(h) of the Specific Relief Act, and the suit for mandatory injunction for demolition of construction was maintainable against the co-sharer. The court also noted that the construction raised by the defendants during the pendency of the suit was liable to be removed.
Issues: The issues included entitlement to raise construction, possession rights, multifariousness of the parties and causes of action, non-joinder of necessary parties, undervaluation of the suit, relief entitled to the plaintiffs, and obstruction of pathway due to construction.
Ratio Decidendi: The court held that the suit was not barred by Section 41(h) of the Specific Relief Act, and the suit for mandatory injunction for demolition of construction was maintainable against the co-sharer. The court also found that the construction raised by the defendants during the pendency of the suit was liable to be removed.
Final Decision: The second appeal was dismissed, and the defendants were directed to get their share partitioned from the competent court.
This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 04.04.2001, passed by Additional Civil Judge (Senior Division), Roorkee, in Civil Appeal No.34 of 1998, whereby said court has dismissed the appeal and affirmed the judgment and decree dated 19.05.1998, passed by the trial court [1st Additional Civil Judge (Junior Division), Roorkee] in Original Suit No. 214 of 1989.
2. Heard learned counsel for the parties, and perused the lower court record.
3. Brief facts of the case are that the plaintiffs Mohd. Saleem and Fatima Begum filed a Suit No. 214 of 1989, pleading that plaintiff No.1 Mohd. Salim and defendants Iqbal Ahmad and Afzal Ahmad are Bhumidhars in possession of the property shown in Schedule A (of Khasra No. 353, situated in Village Manak Mazra) in the plaint. It is further pleaded that the property mentioned in Schedule B (of Khasra No. 352, situated in Village Manak Mazra) was also owned by plaintiff No.1 Mohd. Saleem and defendant No. 1 Iqbal Ahmad, which was sold to plaintiff No.2 Fatima Begum, vide sale deed dated 01.09.1989. However, another co-sharer Behroz Ali (in Khasra No. 352) sold his 1/4th share to defendant No. 1 and 2, vide registered sale deed dated 26.07.1989, but the rights, as co-bhumidhar in possession of the plaintiffs and defendants No. 6 and 7 remained undisturbed in Schedule B (Khasra No. 352). It is also pleaded by the plaintiffs that defendant No. 1 to 4 have no concern whatsoever with the property mentioned in Schedule A (Khasra No. 353). As to the property mentioned in Schedule B (Khasra No. 352), it is pleaded by the plaintiffs that these defendants have threatened to make exclusive possession over the part of land of Khasra No. 352 and they intend to raise construction. During the pendency of suit, amendment was made in the plaint that in the months of February-March, 1994, the defendants No. 1 to 4 have raised constructions over the property mentioned in Schedule C (which was part of Schedule A and B), violating the temporary injunction granted on 11.11.1989. As such, in the plaint, apart from perpetual prohibitory injunction, the plaintiff sought mandatory injunction for removal of construction allegedly raised by the defendants No. 1 to 4.
4. The defendants No. 1 to 4 contested the suit and filed their written statement, in which, they pleaded that Behroz Ali, (one of the co-sharers in Khasra No. 352) transferred 1/4th of his share through sale deed dated 26.07.1989 to them, and gave exclusive possession over the disputed land, as the same was already partitioned between Behroz Ali and other co-sharers. It is denied by the defendants that they had made any unauthorised construction over the land in dispute. It is also pleaded by the contesting defendants that the suit is barred by Section 41 of the Specific Relief Act, 1963. As to the right of pathway, it is pleaded by the contesting defendants that for the plaintiffs there is already pathway available in Khasra No. 350 and 351.
5. On the basis of the pleadings of the parties, following issues were framed by the trial court:-
1. Whether the defendants No. 1 to 4 were entitled to raise construction over 1/4th portion of the disputed property shown in Schedule B on its northern side, if so, its effect?
2. Whether Behroz Ali had got exclusive possession over his 1/4th share in Khasra No. 352, before he transferred the same to the defendants No. 1 and 2?
3. Whether the suit is bad for multifariousness of the parties and causes of action?
4. Whether the suit is bad for non-joinder of the necessary parties?
5. Whether the suit is under valued and court fee paid is insufficient?
6. To what relief, if any, the plaintiffs are entitled?
7. Whether the suit is barred by Section 41 of the Specific Relief Act, 1963?
8. Whether the defendants raised construction over the disputed property during the pendency of suit and is the same liable to be removed?
9. Whether no cause of
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