Dismissed

Shobha Ram v. Bhavan Kumar

Himachal Pradesh HC13 Sept 2017CMPMO/156/2017

Case brief

AI extract

What is this about?

The petitioner defendants challenged a High Court order maintaining status quo on joint family land pending partition. The bench emphasized the legal rights of co-sharers and rejected the claim of harassment, noting the land remains joint without specific hereditary partition yet.

What did the court decide?

Petition dismissed as the suit land remains joint and status quo order stands affirmed.

Shobha Ram Vs Bhavan Kumar — Partition | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CMPMO No. 156 of 2017 Reserved on: 05.09.2017 Decided on: 13.09.2017

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Shobha Ram …..Petitioner Versus Bhavan Kumar ……Respondent ___________________________________________________ Coram_ The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? No. For the petitioner : Mr. Vinod Thakur, Advocate. For the respondent : Mr. Vikas Rathore, Advocate.

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Chander Bhusan Barowalia, Judge

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The present petition, under Article 227 of the Constitution of India, is maintained by the petitionerdefendant (hereinafter to be called as “the defendant”), against the order dated 08.03.2017, passed by learned Additional District Judge (II), Mandi, District Mandi, H.P. (camp at Jogindernagar) in Civil Appeal No. 7 of 2016, whereby order, dated 15.12.2016, passed by learned Civil Judge (Jr. Div.), in CMA No. 370-VI/2016, was affirmed.

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

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Briefly, the facts, giving rise to the present petition are that the respondent/plaintiff (hereinafter to be called as “the plaintiff”) has filed an application before the learned trial Court with the averments that the land measuring 04-06-05 bighas, situated in Mohal Katipari/536, Tehsil Padhar, District Mandi, H.P. (hereinafter to be called as the “suit land”) is owned and possessed by him, defendant and other co-sharers. It has been further averred that the suit land is still un-partitioned land and defendant has no right to grab the best portion of the suit land unless and until the same is partitioned by metes and bounds. However, despite that, the defendant remained adamant and he started raising construction over the best and valuable portion of the suit land, which is adjacent to the house of the plaintiff. Hence the plaintiff filed the present application, under Order 39, Rule 1 & 2, read with Section 151 of CPC.

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The defendant, contested and resisted the suit, as well as, application of the plaintiff by filing written statement, wherein preliminary objections qua suit is not maintainable, suit is collusive one, estoppels, cause of action, suit is bad for non-joinder and mis-joinder of

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necessary parties, locus standi, suit is filed on false and frivolous grounds, valuation and suit is hit by provision of Section 10 of CPC were taken. On merits it has been averred that the father of the plaintiff had also filed the suit against the defendant qua the same suit land for permanent prohibitory injunction, vide Civil Suit No. 491/2012, which was dismissed by the learned trial Court and learned lower Appellate Court and now the case is pending adjudication before Hon’ble High Court of Himachal Pradesh and as the plaintiff has failed to obtain stay orders thereupon, he has filed this collusive suit just to harass the defendant. It has been further averred that every co-sharers are having their respective possession and most of the co-sharers including the plaintiff, have constructed their houses over the suit land, however the partition proceedings are pending before the Assistant Collector 1^st Grade, Padhar. Lastly the defendant prayed for dismissal of the suit/application.

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By filing rejoinder, the plaintiff has re-asserted the facts of the case.

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Learned trial Court vide order dated 15.12.2016, allowed the application filed by the plaintiff and directed

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the parties to maintain status quo, qua nature and possession over the suit land till disposal of the main case. Subsequently, the defendant preferred an appeal before learned lower Appellate Court against the said order, which was dismissed. Feeling aggrieved from the order passed by learned lower Appellate Court, the defendant filed the present petition.

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I have heard the learned counsel for the parties and gone through the record in detail.

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Learned counsel for the petitioner-defendant has argued that the parties are on their settled distinct possession and the orders passed by both the learned Courts below are liable to be set aside. He has further argued that learned trial Court has not taken into consideration the order passed by this Hon’ble High Court, on an application in regular second appeal, preferred by the father of the plaintiff-respondent, wherein the interim relief was not granted to him. On the other hand, learned counsel appearing on behalf of the respondent-plaintiff has argued that as per the revenue record, the suit property is still joint, which is required to be protected till partition of the suit land and the fact which the petitioner-defendant is

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alleging is required to be proved by leading cogent evidence. He has further argued that the orders passed by both the learned Courts below are as per law and need no interference, hence the present petition be dismissed. In rebuttal, learned counsel for the petitioner-defendant has argued that the defendant is in exclusive possession of the suit land, so the present petition be allowed and orders passed by both the learned Courts below be set aside.

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To appreciate the arguments of learned counsel for the parties, this Court has gone through the record in detail.

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At the very outset it is seen that as the father of

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the plaintiff has already maintained a suit, which is evident from the pleadings and now the present plaintiff being son of earlier plaintiff has instituted a suit on the same and similar facts. Taking into consideration the arguments of learned counsel for the petitioner-defendant, the present suit has been filed just to harass the defendant, so the application was required to be dismissed, however the learned trial Court has allowed the application, which order was confirmed by the learned lower Appellate Court. On the other hand, taking into consideration the arguments of

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learned counsel for the respondent-plaintiff, he has vehemently argued that in case interim order, passed by the learned Court below is vacated, the suit of the plaintiff will become infructuous.

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In the instant case, the facts which has come on record show that the defendant is in possession of the land measuring 0-6-0 bighas and the plaintiff, as well as his father have also raised construction, in which they are residing. However, the partition proceedings are pending before the Assistant Collector 1^st Grade and it has come on record that the suit land is still joint between the parties and petitionerdefendant has no specific portion of the suit land in his possession, though he is raising construction over the best portion of the suit land. Further there is nothing to conclude that all the co-sharers are in possession of the suit land, they are in possession of the different shares on the basis of some understanding and they are in possession of the property of their share since long and the vendor has not sold any specific portion of the suit land in his favour, but only a share in the suit land.

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This Court in RSA No. 575 of 2010 titled as Kewal

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Krishan & another vs Amrit Lal, has extensively enumerated

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the rights of the co-sharers in their property, which reads thus:

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“(a) A co-owner/co-sharer has an interest/right in the whole property, i.e., in every inch of it.

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(b) Possession of joint property by one coowner/ co sharer, is in the eye of law, possession of all even if all, except one are actually out of possession.

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(c) A mere occupation of a larger portion or even of an entire joint property by one cosharer/co-owner does not amount to ouster of the other, as the possession of one is deemed to be on behalf of all. This is subject to an exception when there is complete and conclusive ouster of a coowner/co-sharer by another, but in order to negative the presumption of joint possession on behalf of all, on the ground of such ouster, the possession of a coowner/co-sharer must not only be exclusive but also hostile to the knowledge of the other, i.e., when a co-owner openly asserts his own title and denies that of the other.

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(d) Lapse of time does not extinguish the right of the co owner/co-sharer, who has been out of possession of the joint property, except in the event of abandonment.

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(e) Every co-owner/co-sharer has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners/co-sharers.

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(f) Where a co-owner/co-sharer is in possession of separate parcels under an arrangement/consent by the other coowners/co-sharer, it is not open to any cosharer/co-owner to disturb the

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arrangement without the consent of others, except by way of partition.

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(g) Whenever there is severance of title and the parties have a long possession on the parcels of joint land, as far as possible, the partition is required to be made in a manner that party in occupation, as far as possible, be adjusted in that portion or part of that.

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(h) Co-sharers/co-owners are expected to respect the right of others even when they are in settled possession on specific portion of the land in a manner that the easementary rights of the others are not obstructed.

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(i) The co-sharers/co-owners are required to respect the sentiments of each other to maintain peace among themselves. This is not only a legal, but a moral duty as well, which is required to be followed by the co sharers/co-owners and should be recognized as a right while adjudicating the rights of the parties, as the ultimate goal of the administration of justice is to maintain peace in the society, especially among the co-sharers/co-owners.

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(j) The eldest co-sharer/co-owner is duty bound to come forward and settle the dispute inter se any two or more cosharers/co-owners after mediating. This is not only his duty as a co-sharer/co-owner being elder, but also his moral duty to spare some time, experience, mental faculties and the respect he command to mediate dispute(s) among the co sharers/co-owners in order to achieve peace. The Courts can also make use of such process by taking help from the elder co-sharer/co-owner by asking him to mediate the matter, so that the peace is

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achieved among the co-shares/coowners and ultimately in the society.”

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Taking into consideration the averments and law

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cited (supra), this Court finds that the orders passed by learned Courts below needs no interference, as the suit land is still joint between the co-sharers and in case ultimately the land, where the defendant is raising construction comes to the share of the plaintiff or any other co-sharer, he will suffer irreparable loss and the same will also give rise to multiplicity of litigation. Thus, the judgment (supra), as cited by learned counsel for the petitionerdefendant, is not applicable to the facts of the present case.

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As there is a restrained order against the petitioner-defendant, it is expected that learned trial Court will try to dispose of the matter as expeditiously as possible and preferably within six months from the date of appearance of the parties before learned trial Court. Parties are directed to appear before the Court below on 21^st September, 2017 .

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The instant petition, sans merits, deserves dismissal and is accordingly dismissed. However, in view of

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peculiar facts and circumstances of the case, the parties

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are left to bear their own costs. Pending miscellaneous

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application(s), if any, also stand(s) disposed of.

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(Chander Bhusan Barowalia) Judge

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13^th September, 2017

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(raman)

Shobha Ram v. Bhavan Kumar

Case brief

What is this about?

What did the court decide?

Shobha Ram v. Bhavan Kumar

Case brief

What is this about?

What did the court decide?

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