Dismissed¶¶37

Jog Ram v. Raj Kishore and Others

Himachal Pradesh HC16 Jul 2024RSA/87/2019

Case brief

AI extract

What is this about?

RSA No. 87 of 2019; Jog Ram v. Raj Kishore and others; High Court of Himachal Pradesh at Shimla; decided 16 July 2024; Justice Ajay Mohan Goel; approved for reporting; regular second appeal; substantial question of law; concurrent findings; perversity; mis-joinder of parties; non-joinder of coowners; joint and un-partitioned land; khewat; jamabandies Ex.PW-1/A to Ex.PW-1/J; mutation Nos.11284, 11285, 11292, 10604; null and void mutation; family partition/arrangement; exclusive possession 18-4-0 bighas; suit for declaration and permanent prohibitory injunction; appeal dismissed; miscellaneous applications disposed.

What did the court decide?

No substantial question of law is involved in this Regular Second Appeal. ¶¶30

Jog Ram Vs Raj Kishore and Others — Himachal Pradesh HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether any substantial question of law arises in this Regular Second Appeal against the concurrent judgments and decrees of the Courts below. +2 more

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Court's answer

No substantial question of law is involved in this Regular Second Appeal.

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Ratio / Principle

There are concurrent findings of both Courts below, based on jamabandies Ex.PW-1/A to Ex.PW-1/J, that the suit land was not jointly owned and possessed by the parties but that different holdings/khewats were jointly owned and possessed by different parties, rendering the suit bad for mis-joinder of parties; these findings were not demonstrated to be perverse.

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Key takeaways

It is a matter of record that all coowners of the suit land were not impleaded as party defendants; the suit was therefore bad for non-joinder of parties.ratio¶¶34
The concurrent findings of fact that defendant No.1 was not in exclusive possession of 18-4-0 bighas and that the plaintiff and defendants No.2 to 4 were not in exclusive possession of their respective shares stand against the plaintiff and were not shown to be perverse.ratio¶¶34

Detailed headnote1 paragraphs

Himachal Pradesh High Court, RSA No. 87 of 2019 (decided 16 July 2024, Ajay Mohan Goel J.; approved for reporting). Plaintiff Jog Ram's Regular Second Appeal against concurrent dismissal of his suit for declaration (challenging mutations Nos.11284, 11285, 11292 and 10604 as null and void) and permanent prohibitory injunction. Both Courts below found, on jamabandies Ex.PW-1/A to Ex.PW-1/J, that the suit land was not jointly owned and possessed by all parties — different holdings/khewats being jointly owned and possessed by different parties — so the suit was bad for mis-joinder/non-joinder; they also found no exclusive possession of 18-4-0 bighas by defendant No.1 nor of shares by the plaintiff and defendants No.2 to 4, and that the alleged family partition/arrangement was not proved. Holding there was no substantial question of law and no perversity in the concurrent findings, the High Court dismissed the appeal; pending miscellaneous applications stand disposed. Respondents other than those represented by counsel were ex parte; the name of respondent No.8 stood deleted.

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2024:HHC:5646

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IN THE HIGH COURT OF HIMACHAL PRADESH AT

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SHIMLA

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RSA No. 87 of 2019 Decided on 16^th July, 2024

Jog Ram

…Appellant

Versus

Raj Kishore and others

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…Respondents

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Coram

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Hon’ble Mr. Justice Ajay Mohan Goel, Judge

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1Whether approved for reporting? Yes

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For the appellant: Mr. Ajay Kumar, Senior Advocate, with Mr. Sumit Sood, Advocate.

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For the respondents: Mr. Arun Kumar, Advocate, for respondents No.6, 8, 11, 13, 25, 32 and 42 to 45.

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Respondents No.1 to 5, 9, 10, 12, 14 to 24, 26 to 31, 33 to 41 are ex parte.

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Name of respondent No.8 stands deleted.

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Ajay Mohan Goel, Judge (Oral )

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By way of this Regular Second Appeal, the appellant challenges the judgments and decrees passed by the learned Courts below, in terms whereof, the suit for declaration and injunction filed by the plaintiff was dismissed and so was the fate of the appeal.

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Brief facts necessary for the adjudication of the present appeal are that appellant/plaintiff filed a suit for declaration that the suit land was joint and un-partitioned and mutation Nos.11284, 11285, 11292 and 10604 got attested by defendants No.1 to 5 qua the suit land, part whereof was in possession of the plaintiff also in connivance with Revenue Officials behind the back of the plaintiff and without notice to him were null and void. Alternatively, a decree for permanent prohibitory injunction for restraining the defendants from changing the nature of the suit land and raising any construction there upon was also prayed for.

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The stand of the defendants was that, though, the suit land was jointly owned by the parties and had not been legally partitioned, but, the parties were in separate possession of the respective shares in the suit land and none could be said to be in possession of the suit land as pleaded by the plaintiff without ascertaining the spot. It was also the stand of the defendants that the plaintiff had occupied the land in excess to his share and the mutation was rightly attested and sanctioned by the Revenue Authority as per the factual position. It was also

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the stand of the defendants that the suit was bad for mis-joinder of the parties. The plaintiff had agreed to hand over the possession of the land in excess to his share and to compensate for the same, but, he had failed to do so.

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Learned trial Court dismissed the suit by holding that the suit land was not jointly owned and possessed by all the parties to the suit, rather different holdings/khewats were jointly owned and possessed by different parties to the suit as detailed in jamabandies Ex.PW-1/A to Ex.PW1/J and the suit was bad for mis-joinder of the parties. It also held that defendant No.1 was not in exclusive possession of land measuring 18-4-0 bighas nor plaintiff and defendants No.2 to 4 were in exclusive possession of their respective shares as per the alleged family partition/arrangement. Learned trial Court also held that the so called family partition/arrangement was not proved in accordance with law and, therefore, mutation under challenge could not be held to be null and void.

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In appeal, the findings returned by the learned trial

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Court were upheld. Learned Appellate Court held that it was an admitted case of the parties that the suit land was jointly owned

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and possessed by all the co-sharers, but, the appellant had failed to lead any evidence to prove that any family partition or arrangement was entered into between the parties. Learned Appellate Court also held that the suit land was not jointly owned and possessed by all the parties, rather different holdings/khewats were jointly owned and possessed by different parties to the suit and, therefore, the suit was not maintainable. It held that as the plaintiff had failed to prove his case and learned trial Court had rightly dismissed the suit of the plaintiff.

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Feeling aggrieved, the plaintiff has filed this appeal.

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Having heard learned Senior Counsel for the appellant as also learned counsel for the represented respondents and having carefully gone through the judgments and decrees passed by both the learned Courts below, this Court does not finds any substantial question of law involved in this appeal.

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There are concurrent findings returned by both the

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learned Court below on the basis of evidence on record i.e. jamabandies Ex. PW-1/A to Ex.PW-1/J that the suit land was not jointly owned and possessed by the parties to the suit, but,

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rather different holdings/khewats were jointly owned and possessed by different parties to the suit and, therefore, the suit was bad for mis-joinder of the parties. During the course of the hearing of the appeal for admission, it could not be demonstrated before this Court that the findings so returned by the learned Courts below were perverse and not borne out from the record. Therefore as, it is a matter of record that all the coowners of the suit land were not impleaded as party defendants, but obviously, suit was bad for non-joinder of parties. Learned Courts below have also concurrently held that defendant No.1 was not in the exclusive possession of the land measuring 18-4-0 bighas nor the plaintiff and defendants No.2 to 4 were in exclusive possession of the respective shares as the alleged family partition/arrangement was could not be proved by the plaintiff. These findings returned by the learned Courts below are also issues of fact concurrently held against the plaintiff and from the record it could not be proved that these findings were perverse, because, even before this Court, the appellant could not demonstrate that there was any family partition or arrangement as was alleged by the plaintiff.

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In these circumstances, learned Courts below

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rightly refused to grant any relief to the plaintiff as he had failed to prove his case as was pleaded and as the findings that have been returned by the learned Courts below are borne out from the pleadings and evidence on record and there is no perversity therein and further as no substantial question of law is involved in this appeal, the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of.

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(Ajay Mohan Goel) Judge

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July 16, 2024 (Vinod)

Jog Ram v. Raj Kishore and Others

Case brief

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Jog Ram v. Raj Kishore and Others

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