Dismissed

Rajesh Kumar v. Mani Ram

Himachal Pradesh HC9 Sept 2024CMPMO/484/2024

Case brief

AI extract

What is this about?

The High Court dismissed a petition challenging an interim injunction restraining the petitioner-defendant from interfering with the suit land. The Court upheld the lower courts' findings that the plaintiff established a prima facie case and that the balance of convenience lay with the plaintiff, as the land was in the plaintiff's exclusive possession according to revenue records.

What did the court decide?

Petion dismissed; interim injunction maintained.

Rajesh Kumar Vs Mani Ram — Property and Title | Himachal Pradesh HC (2024)

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( 2024:HHC:8119 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 484/2024 Decided on: 09.09.2023 Rajesh Kumar …Petitioners

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Versus Mani Ram ....Respondent.

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………………………………………………………………………………. Coram

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Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge Whether approved for reporting?¹

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For the petitioner: Mr. Loveneesh Singh Thakur, Advocate. For the respondent: Nemo.

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Jyotsna Rewal Dua, Judge

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The petitioner was the defendant before the learned Trial Court. An application moved by the respondent-plaintiff under Order 39 Rules 1 & 2 read with Section 151 of Civil Procedure Code (CPC) was allowed by the learned Trial Court on the basis of submissions made by learned counsel for the petitioner/defendant.

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In terms of the order passed by the learned Trial Court on 31.07.2023, the ex-parte interim order dated 05.06.2023 passed in the aforesaid application moved by the respondent/plaintiff was made absolute till the disposal of the main case. The petitionerdefendant assailed the aforesaid order before the learned District Judge. The appeal was dismissed on merits on 31.05.2024. Feeling

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1 Whether reporters of the local papers may be allowed to see the judgment?

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( 2024:HHC:8119 )

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aggrieved against the aforesaid order, the instant petition has been preferred.

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The parties hereinafter has been referred to according to their status before the learned Trial Court.

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2. Heard learned counsel for the parties & considered the

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case record.

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2(a) The respondent-plaintiff instituted a civil suit before the learned Trial Court seeking permanent prohibitory injunction against the petitioner-defendant. The respondent-plaintiff pleaded that he was a co-owner in exclusive possession of the suit land comprised in Khata Khatauni No.4min/12 and 20, Khasra Nos. 500/128, 510/354/124, 517/354/124, Kita-3, measuring 00-07-00 bigha, and also Khasra Nos. 503/131 and 519/358/139, Kita-2, measuring 0003-00 bigha, total suit land measured 00-10-00 bigha, situated in Mauza Dhar-Kiyari, Tehsil Nahan, District Sirmaur, H.P.

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The defendant was co-owner in Khata No. 4, however, his possession was only on Khatauni No. 11, Khasra Nos. 508/354/124 and 512/354/124. Plaintiff’s grievance was that the defendant had deployed a JCB Machine on 31.05.2023 intending to dig portion of the suit land near his house. According to the plaintiff, the defendant intended to pull down plaintiff’s construction thereby causing wrongful loss to his house and property. Alongwith the civil

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( 2024:HHC:8119 )

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suit, plaintiff moved an application seeking temporary injunction with the pleadings that the defendant had already started stacking mud over the suit land and was making attempts to raise constructions over the suit land in such a manner that, in case, he was not restrained from doing so, irreparable loss and injury would be caused to the plaintiff. Hence, prayer was made for grant of temporary injunction to restrain the defendant from interfering over the suit land and dispossessing the plaintiff from the same.

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2(b) Learned Trial Court passed an ex-parte interim order in the matter on 05.06.2023 granting temporary injunction in favour of the plaintiff. Defendant did not file any reply to the application. The matter next appeared before the learned Trial Court on 31.07.2023, when following order was passed:

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“ No reply is intended to be filed.

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Since no reply is intended to be filed on behalf of the respondent, as such, the ex parte interim order dated 05.06.2023 granted by this Court is made absolute till the final disposal of the main case. Accordingly, application stands allowed and disposed of. After due completion be tagged with the main file for record.”

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2(c) The defendant filed appeal against the aforesaid order before the learned Appellate Court alleging that no such statement as recorded in the order dated 31.07.2023 was made on his behalf that he did not intend to file any reply to the application seeking

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( 2024:HHC:8119 )

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interim injunction. It was submitted for the defendant before the learned First Appellate Court that the defendant had already filed the written statement and had contested the civil suit on the pleas that the plaintiff had already covered 10 biswas of land purchased by him from the father of the defendant; The defendant was raising construction over his own share in the land comprised in Khasra Nos.501/128, 497/125 and 498/126. These three khasra numbers were in exclusive possession of the defendant. Therefore, balance of convenience was also in favour of the defendant. Irreparable loss and injury in fact would be caused to the defendant in case, the injunction was granted to the plaintiff. Plaintiff had no right to stop construction being carried out by the defendant over his own share.

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2(d) Learned First Appellate Court held that there was no reason to disbelieve the facts mentioned in the order dated 31.07.2023 passed by the learned Trial Court, wherein it was recorded that the defendant did not intend to file any reply to the application moved by the plaintiff seeking temporary injunction. The defendant, therefore, could not be permitted to contend before the learned Appellate Court that he was not given fair opportunity to file reply. Had such allegations been correct and defendant actually wanted to file reply to the application, he would have brought this

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fact to the notice of the learned Trial Court and would not have maintained silence. Learned First Appellate Court expressed its

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( 2024:HHC:8119 )

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satisfaction that the facts mentioned in the order passed by the learned Trial Court on 31.07.2023 were correctly recorded.

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3. No fault can be found to the aforementioned observations of the learned First Appellate Court as recorded in the order dated 31.05.2024. Admittedly no such application had been moved by the defendant before the learned Trial Court about incorrect recording of facts in the order dated 31.07.2023. Be that as it may.

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4 Learned First Appellate Court has also considered the merits of appeal moved by the defendant against the order dated 31.07.2023 and held that the suit was instituted by the plaintiff in respect of Khasra Nos.500/128, 510/354/124 and 517/354/124, Kita-3, measuring 00-07-00 bigha, and land comprised in Khasra Nos. 503/131 and 519/358/139, Kita-2, measuring 00-03-00 bigha, total measuring 00-10-00 bigha. That the said described suit land has been depicted in exclusive possession of the plaintiff in the revenue record. There is presumption of truth attached to the jamabandi (revenue record). Till the time, the presumption is rebutted, in accordance with law, the revenue record has to be accepted. Even the defendant did not dispute that the land measuring 00-10-00 bigha was in exclusive possession of the plaintiff.

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( 2024:HHC:8119 )

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5. The case of the defendant in his written statement was

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that he was in possession over the land comprised in Khasra Nos. 501/128, 497/125 and 498/126. It was the case of the defendant that he was raising construction over the afore-described land and that he was not interfering with the suit land. Learned First Appellate Court held that the suit land was in exclusive possession of the plaintiff, whereas the defendant was in exclusive possession of the other three khasra numbers. In view of the allegations and counter allegations as have been levelled by the parties against each other in their respective pleadings, a prima-facie case was made out by the plaintiff that the defendant while raising construction was trying to encroach upon the vacant area in the suit land; That the defendant was raising the construction in his land in such a manner so as to cause damage to the construction of the plaintiff over the suit land. It was in this background the learned Trial Court after going through the revenue record and pleadings had passed adinterim injunction order on 05.06.2023 restraining the defendant from causing any interference over the suit land, which order was made absolute on 31.07.2023.

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In view of above discussions, and taking note of the pleadings of the parties as well the orders passed by the learned Courts below I see no reason to interfere with the same. The plaintiff had certainly made out a prima facie case in his favour with

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( 2024:HHC:8119 )

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respect to the suit land. It is not the case of the defendant that he was having any right over the suit land or to damage or raise construction or to do any prejudicial act over the suit land, which could cause irreparable loss & injury to the plaintiff. The balance of convenience was in favour of the plaintiff. The petitioner-defendant has been justly restrained from causing any interference over the suit land. The suit land was neither owned nor possessed by the petitioner-defendant. The suit land was owned by the respondentplaintiff. No loss or injury can be said to have been caused to the petitioner-defendant, in view of the passing of the temporary injunction order in favour of the respondent-plaintiff with respect to suit land. Instant petition is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.

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Jyotsna Rewal Dua Judge

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09^th September, 2024 (rohit)

Rajesh Kumar v. Mani Ram

Case brief

What is this about?

What did the court decide?

Rajesh Kumar v. Mani Ram

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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