Back
HIMACHAL PRADESH HIGH COURT
Sandeep Sharma, J.
Sonam Chomdan and Anr. —Appellants
versus
Ranjit Singh —Respondent
Regular Second Appeal No.257 of 2005
Decided on 11.8.2017
Counsel for the Parties:
For the Appellant:Mr. Rajnish K.Lall, Advocate vice Mr. Sanjeev Sood, Advocate
For the Respondent:Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate
IMPORTANT POINT
Injunction cannot be granted against true owner.
Headnote:Specific Relief Act, 1963—Sections 34 and 38—Suit for declaration and permanent injunction—Suit for declaration as well as injunction in instant case was filed by plaintiff specifically claiming himself to be owner in possession on strength of agreement allegedly executed by defendant No.1, onus was upon him to prove his possession over suit land by leading cogent and convincing evidence—But, to prove the document, there is no evidence, be it ocular or documentary—None of plaintiff witnesses stated something specific with regard to alleged agreement executed inter se parties—No finding qua possession of respondent-plaintiff qua suit land could be returned by first appellate court in teeth of specific finding returned by it that plaintiff could not be treated owner of suit land—Injunction cannot be granted against true owner and as such first appellate Court erred in concluding that plaintiff cannot be dispossessed from suit land except in accordance with law—Findings returned by first appellate Court qua possession of plaintiff over suit land is totally erroneous being contrary to evidence available on record—Judgment passed by first appellate Court set aside and that of Trial Court restored. (Paras 11, 24, 25, 29, 35 and 41)
Result: Appeal allowed.
Sandeep Sharma, J.—This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 04.03.2005, passed by learned District Judge, Kinnaur at Rampur Bushahr, in Civil Appeal No.49 of 2004, reversing the judgment and decree dated 26.06.2004 passed by learned Civil Judge (Senior Division), District Kinnaur at R/Peo, H.P., whereby suit of the plaintiff was dismissed.
2. Briefly stated facts, as emerged from the record, are that the plaintiff-respondent (hereinafter referred to as the ‘plaintiff’) filed a suit for declaration with consequential relief of permanent injunction against the defendants on the allegations that defendant No.1 Furbu Dandup (since deceased) was owner in possession of land comprised in Khasra No.349, measuring 0-10-01 hectare, situated in revenue estate Kanam, Up Mohal Kanam Khas, Tehsil Pooh, Distt.Kinnaur. It is averred by the plaintiff that on 17.12.1983, deceased defendant No.1 borrowed a sum of Rs.30,500/- from the plaintiff and agreed to return the same to him within a period of one year, failing which, the plaintiff was to be treated owner in possession of the suit land by oral sale thereof. It is further averred that on 17.12.1983, the possession of the suit land was handed over to the plaintiff by defendant No.1. It is also averred that defendant No.1 did not honour the oral agreement, dated 17.12.1983 and as such, the plaintiff had acquired rights of ownership of possession of the suit land. Thereafter, the plaintiff applied for correction of entries in the books of the Collector. It is further claim of the plaintiff that the Assistant Collector Ist Grade, Pooh, vide its order dated 7.5.1995, with consent of defendant No.1, recorded the plaintiff in possession of the suit land and therefore, defendants No.1 to 3 had no right, title or interest in the suit land. It is averred that defendants No.1 to 3 started interfering with the ownership and possession of the plaintiff over the suit land w.e.f. 17.11.1995 and defendants No.2 and 3 trespassed into the suit land on the night intervening 17.11.1995 and 18.11.1995 and damaged apple plants thereby causing loss of Rs.20,000/- to the plaintiff. In this background, the plaintiff instituted the suit for declaration of his ownership and possession qua the suit land and defendants No.1 to 3 were sought to be restrained from interfering with the ownership and possession of the plaintiff by issuance of a decree of perpetual injunction against them. The plaintiff also sought compensation of Rs.20,000/- from defendants No.1 to 3 for causing damage to his apple plants. It is also averred that during the pendency of the suit, on 9.9.2001 defendant No.1 died and defendant No.2 Sonam Chomdan was brought on record as his legal heir.
3. Defendants No.2 and 3, by way of filing written statement, refuted the claim of the plaintiff on the grounds of limitation, maintainability and valuation for the purposes of court fee and jurisdiction. It is averred that defendant No.1 was deaf and dumb and could not have been sued except through guardian and defendants No.2 and 3 denied the ownership and possession of the plaintiff over the suit land. Defendants No.2 and 3 also denied oral sale of the suit land by defendant No.1 in favour of the plaintiff on 17.12.1983 or at any time thereabout. It is averred by defendants No.2 and 3 that defendant No.1 had not borrowed a sum of Rs.30,500/- from the plaintiff on 17.12.1983 and had not agreed to pay the same to him within a period of one year. It is further averred by the defendants that the suit land was not deemed to have been sold in favour of the plaintiff on the alleged failure of the defendant No.1 in returning the amount of Rs.30,500/- to the plaintiff. Defendants No.2 and 3 denied having interfered with the ownership and possession of the plaintiff over the suit land as well as having damaged apple plants of the plaintiff. According to defendants No.2 an
