Allowed

Mehar Singh v. Ramuni Devi

Himachal Pradesh HC24 Jul 2017CMPMO/148/2017

Case brief

AI extract

What is this about?

The High Court set aside the lower appellate court order that set aside a civil court injunction. The High Court allowed the petitioner's petition, directing parties to maintain status quo regarding the suit land except for Khasra No.594, over which the respondent has exclusive claim.

What did the court decide?

Parties directed to maintain status quo qua nature, possession and alienation of suit land except Khasra No.594 till final disposal of the main suit.

Mehar Singh Vs Ramuni Devi — Partition | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No.148 of 2017. Reserved on : 10.07.2017. Decided on: 24^th July, 2017.

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Mehar Singh & anr. ...Petitioners. Versus Ramuni Devi & ors. …Respondents.

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Coram

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The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

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Whether approved for reporting?¹ Yes.

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For the petitioners : Ms. Jyostna Rewal Dua, Sr. Advocate with Mr. Chander Mohan, Advocate. For the respondents : Mr. K.D. Sood, Sr. Advocate with Mr. Rajnish K. Lal, Advocate.

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Chander Bhusan Barowalia, Judge

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This petition under Article 227 of the Constitution of India is directed against the judgment, dated 23.2.2017, passed by the learned Additional District Judge, Hamirpur, District Hamirpur, in CMA No.7 of 2016, whereby order, dated 28.3.2016, passed by the learned Civil Judge (Junior Division) Court No.II, Hamirpur, District Hamirpur, in CMA No.162 of 2015, in Civil Suit No.102 of 2015, was set aside.

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Brief facts giving rise to the present petition are that petitioners/plaintiffs (hereinafter referred to as ‘plaintiffs) have maintained a suit against the respondents/defendants (hereinafter referred to as ‘defendants’) for a decree of permanent prohibitory

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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and mandatory injunction qua the land comprised in Khata No.5, Khatauni No.5, Khasra Nos.369, 371/1, 379, 381, 386, 445, 453, 457, 458, 468, 498, 502, 504, 510, 531, 542, 584, 586, 594, 600, 609, 614, 621, 626, 628, 631, 649, 670, 677, 679, 713, 839 and 856 kita 33, area measuring 81 kanals 5 marlas, situated in Village Tika Bailg, Mauza Mewa, Tehsil Bhoranj, District Hamirpur, H.P (hereinafter referred to as ‘suit land’) As per plaintiffs, suit land is jointly owned and possessed by the parties and the same has not been partitioned. The respondents have collected construction material, digging and changing the nature of the suit land for the purpose of construction and also started cutting/felling/removing the valuable trees from the suit land. They have also started cultivating fertile and valuable land more than their share. The defendants are bent upon to dispossess the plaintiffs forcibly from the suit land. They were requested not to make any interference over the suit land till the land is partitioned, but in vain.

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Reply has been filed, wherein it has been alleged that Civil Suit had been filed on the ground that the property was joint between the parties and defendants were collecting material for construction over the same. The suit was contested on the ground that Ramuni Devi, was exclusive owner of khasra No.594, having inherited the same, under the Will of her husband, Shri Vir

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Singh, over which, plaintiffs have no right, title or interest and she was entitled to make construction on her estate and residential building and also entitled to enjoy her share. Apart from Khasra No.594, which came to the share of Ramuni Devi, mother of the parties, parties were in possession of the respective shares under the family arrangement since the time of Vir Singh. The Will of Vir Singh in favour of Ramuni Devi in respect of Khasra No.594, was not disputed by the plaintiffs, but despite the said fact, the learned Court below granted interim injunction, vide order, dated 28.3.2016. Feeling aggrieved the said order, respondents had filed an appeal before the learned lower Appellate Court against the order dismissing the application. It is averred that the learned lower Appellate Court has held that Ramuni Devi, was owner of Khasra No.594. Ramuni Devi, had executed a gift of Khasra No.594 in favour of her sons, namely, S/Shri Hoshiar Singh, Naseeb Singh and Desh Raj, in equal shares. The learned lower Appellate Court, after taking into consideration all the facts and circumstances of the case has rightly found Khasra No.594, which was bequeathed by Vir Singh in favour of his wife, Ramuni Devi, who had further gifted the same in favour of S/Shri Hoshiar Singh, Naseeb Singh and Desh Raj and plaintiffs have no right, title or interest over the suit land. They were owners-in-possession of the suit land, as per family settlement during the life time of Vir Singh. Therefore, no case was made out

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for grant of interim relief, so the present petition arises from the order of learned lower Appellate Court refusing to grant injunction after setting aside the order of learned Trial Court.

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Ms. Jyostna Rewal Dua, learned Senior Counsel appearing on behalf of the plaintiffs has argued that the order passed by the lower Appellate Court is without appreciating the facts, which have come on record to its true perspective and law has not been applied correctly. She has further argued that the injunction order except Khasra No.594, which is subject matter of the partition and is in joint possession of the parties as co-sharer was required to be granted in favour of the plaintiffs. On the other hand, Mr. K.D. Sood, learned Senior Counsel appearing on behalf of defendants has argued that the learned lower Appellate Court has passed the order as per law, after appreciating the facts, which have come on record, as the plaintiffs have no cause of action in their favour. He has further argued that the present petition may be dismissed.

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To appreciate the arguments of learned Senior Counsel appearing on behalf of the parties, I have gone through the entire record in detail.

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In the present case, the learned lower Appellate

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Court while rejecting the application has not considered the consequences of the admitted fact that the entire suit land

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comprised in Khata No.5, Khasra Nos.369, 371/1, 379, 381, 386, 445, 453, 457, 458, 468, 498, 502, 504, 510, 531, 542, 584, 586, 594, 600, 609, 614, 621, 626, 628, 631, 649, 670, 677, 679, 713, 839 and 856 kita 33, area measuring 81 kanals 5 marlas, situated in Tika Bailg, Mauza Mewa, Tehsil Bhoranj, District Hamirpur, H.P, was initially owned by the predecessor-in-interest of the parties, late Vir Singh. In terms of his Will, Khasra No.594, had been bequeathed in favour of Ramuni Devi by Vir Singh. As per the defendants, except Khasra No.594, remaining Khasra numbers of the suit land were co-owned by the parties to the litigation and were in joint possession of all the parties. Thus, there is no reason as to why the defendants could not be restrained for interfering or changing

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the nature of the suit land or alienating the suit land till the partition of the joint suit land by metes and bound. It has further been observed that S/Shri Karam Singh, Nasib Singh and Desh Raj had not made any appeal against the order of learned trial Court. Otherwise also, the ground of appeal taken before the learned lower Appellate Court, it is clear that the defendants/respondents are strictly exclusive claim only with respect to Khasra No.594 and they are claiming exclusive possession only qua Khasra No.594.

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In case, the land on which the plaintiffs are co-

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sharer nature of the same needs to be maintained by the defendants and shall not be changed till final disposal of the suit

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land and if the land encumbered upon or alienated, the same will give rise multiplicity of litigation and will cause irreparable loss to the plaintiffs. The balance of convenience also lies in favour of the plaintiffs/petitioners and against the defendants/respondents. The plaintiffs/petitioners being co-sharer has a prima facie case in their favour, which is evident after going through the pleadings of parties. So, the net result of the above discussion is that the order of learned lower Appellate Court rejecting the application qua whole of the land is without jurisdiction. So, it is required to be ordered that the parties to maintain status quo qua nature, possession and alienation of the suit land except Khasra No.594, which is as per the parties in exclusive possession of the defendants. Accordingly, it is ordered that the present petition is allowed, as the order passed by the learned lower Appellate Court is without appreciating the facts to its true perspective and the learned lower Appellate Court has failed to apply the law correctly to the facts and circumstances of the case. So, it is ordered that parties are directed to maintain status quo qua nature, possession and alienation of the suit land except Khasra No.594 till final disposal of the main suit. Ordered accordingly. Parties through their learned counsel are directed to appear before the learned Court below on 10^th August, 2017.

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In view of the above, the petition is disposed of in the aforesaid terms, so also the pending application (s), if any. In

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the peculiar facts and circumstances of the case, parties are left to

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bear their own costs.

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24^th July, 2017 (Chander Bhusan Barowalia) (CS) Judge

Mehar Singh v. Ramuni Devi

Case brief

What is this about?

What did the court decide?

Mehar Singh v. Ramuni Devi

Case brief

What is this about?

What did the court decide?

What the court decided

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