Ravinder Kumar Vs Ganesh Dutt

For the Appellant : Mr Rahul Gathania, Advocate, vice Mr Sanjeev Sood, Advocate. For Respondents No.1(a) to : Mr Prantap Sharma, Advocate. 1(c) and 2 For Respondents No.3 and 4 : None.

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Rakesh Kainthla, Judge

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The present appeal is directed against the judgment and decree dated 23.9.2008, passed by learned Additional District Judge-

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II, Kangra at Dharamshala, District Kangra, H.P. (learned Appellate

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

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Court) vide which the judgment and decree dated 26.6.2003, passed

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by learned Sub Judge First Class-II, Dehra. District Kangra, H.P. (learned Trial Court) was upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience) .

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Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking a Permanent Prohibitory Injunction for restraining the defendants from interfering with the suit land mentioned in the headnote of the plaint, and a mandatory injunction directing the defendants to demolish the construction and restore the suit land to its original position. It was asserted that the suit land is recorded as Abadi Deh in the copy of Jamabandi for the years 1985-86. The defendant No.1 started interfering with part of the suit land in the year 1981, and the plaintiff instituted a civil suit against him. The defendant No. 1 pleaded that he was a shareholder in the suit land, but this plea was not accepted by the Court. The defendants forcibly raised construction in Abadi Deh in the year 1992. The plaintiff requested the defendants not to interfere with the suit land, but in vain. Hence, the suit was filed to seek the relief mentioned above.

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The suit was opposed by the defendants by filing a written statement taking preliminary objections regarding lack of maintainability, cause of action and locus standi, the plaintiff being estopped from filing the suit by his act, conduct and laches, the suit being bad for mis-joinder of defendant No. 2, and the suit being liable to be dismissed with special costs. The contents of the plaint were denied on the merits. It was asserted that Musabi was not correctly prepared, and there is a difference between the earlier and the subsequent record. The plaintiff has occupied a major portion of the suit land, much more than his share. The defendant No. 1 became the owner by purchasing the Abadi land vide Sale Deed dated 1.7.1991 from Purshotam. The defendant constructed houses and shops over his own land, adjoining Abadi Deh Land. He had every right to raise a construction over the portion purchased by him. The plaintiff had no cause of action to institute the present suit. Therefore, it was prayed that the suit be dismissed.

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No replication was filed.

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Learned Trial Court framed the following issues on

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18.2.2000: -

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Whether the plaintiff is entitled for the relief of injunction, as prayed for? OPP.

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Whether the suit is not maintainable? OPD.

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Whether the plaintiff has no locus standi to file the present suit? OPD.

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Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD.

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Whether the suit is bad for the non-joinder of defendant No.2? OPD.

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Whether defendant No.1 is a co-sharer in the suit land? OPD.

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Relief.

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The parties were called upon to produce the evidence, and the plaintiff examined his Power of Attorney, Ravinder Kumar (PW1). The defendant No. 2 examined himself (DW1).

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Learned Trial Court held that the construction was raised in the year 1992. The defendants were the co-owners of the suit land. The plaintiff had filed suit after 3 years and was not entitled to the discretionary relief. The plaintiff had not filed any site plan or sketch to show the construction being raised by the defendant. The defendant had become the owner by virtue of the sale deed (Ex.DW1/B). The suit was not maintainable, and the cause of action was also not proved. Hence, the learned Trial Court answered Issue No.1 in the negative, Issues Nos. 2 to 6 in the affirmative and dismissed the suit.

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Being aggrieved by the judgment and decree passed by the learned Trial Court, the legal heirs of the plaintiff filed an appeal, which was decided by the learned Additional District Judge-II, Kangara at Dharamshala, District Kangra, H.P. (learned Appellate Court). The Appellate Court concurred with the findings recorded by the learned Trial Court that the defendant had become the owner by virtue of the Sale Deed (Ex.DW1/B). The plaintiff had not proved any tatima or the site plan to show the nature and extent of the construction. Learned Trial Court had rightly declined the relief to the plaintiff. Hence, the appeal was dismissed.

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Being aggrieved by the judgments and decrees passed by learned Courts below, the legal heirs of the plaintiff have filed the present appeal, which was admitted on the following substantial questions of law on 5.12.2008: -

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Whether the judgment and decree of the court is perverse, based on misreading of oral and documentary evidence and pleadings of the parties and revenue records, i.e. Jamabandi for the year 1985-86 P-1, pedigree table P-2, Sajra Kistwar P-3, Judgment Ex.PW1/A as also Sale Deed Ex.DW1/B, which has vitiated the findings?

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Whether the Court below was justified in declining the decree for permanent and mandatory injunction to the plaintiff when, on the admitted case of the defendant, that on having purchased the share of Shri Purshotam Dass, he only became a co-sharer and could not usurp the

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right of other co-sharers by raising construction on the land and interfering with the appellant?

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Whether the plaintiff was entitled to a decree for permanent injunction when, in the previous civil suit No. 167 of 1981, Madan Lal Versus Ram Rattan, which had been decreed and on the mere purchasing of the property of Shri Purshotam Dass by the defendant, could confer a right on the plaintiff to interfere with the possession of the appellant?

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I have heard Mr Rahul Gathania, learned vice counsel representing the appellant and Mr Prantap Sharma, learned counsel for the respondents 1(a) to 1(c) and 2.

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Mr Rahul Gathania, learned counsel for the appellants, submitted that the learned Courts below erred in dismissing the suit. Learned Appellate Court had relied upon the amended written statement, which was rejected by the learned Trial Court. This reliance materially prejudiced the plaintiffs. Even if the defendant was a co-sharer, he had no right to raise construction and usurp the best portion of the suit land. The learned courts below failed to appreciate this aspect. Hence, He prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside.

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Mr Prantap Sharma, learned counsel for the respondents 1(a) to 1(c) and 2, submitted that the defendant had

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purchased part of the suit land vide Sale Deed (Ex.DW1/B) and he became the owner of the suit land. The plaintiff had not carried out any demarcation to establish that the construction was raised on the suit land and not on the land located adjacent to the suit land. An Abadi Deh is meant for raising construction, and a co-owner cannot be restrained from raising construction on the Abadi Deh. The plaintiff had not filed any tatima to show the extent and nature of the construction, and the learned Courts below had rightly declined the relief to the plaintiff. Hence, he prayed that the present appeal be dismissed.

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I have given a considerable thought to the submissions made at the bar and have gone through the records : carefully. Substantial question of law No.1

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The copy of the Sale Deed (Ex.DW1/B) shows that Purshotam Dass had sold the land comprised in Khasra Nos. 383 and 389, measuring 0-33-85 hectares to Ram Rattan, defendant No.1. It was specifically stated in para 2 of the plaint that Khasra Nos. 383, 389 and 391 were part of an Abadi Deh. The copy of Jamabandi for the year 1985-1986 (Ex.P1) also shows Khasra No.383, 389 and 391 as Abadi Deh. Ravinder Kumar (PW1), the Power of Attorney of the

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plaintiff, stated in his examination-in-chief that the defendant did not have any share in the suit land, but this is contrary to the Sale Deed executed in favour of the defendant.

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It was submitted that the Sale Deed was not properly proved as the executant or the witness was not examined. This submission will not help the plaintiff. No objection was raised to the exhibition of the Sale Deed before the learned Trial Court. No question was asked regarding the Sale Deed in the crossexamination of Ganesh Dutt regarding the execution of the Sale Deed. It was suggested that Purshotam Dass had filed a civil suit that the sale deed was executed fraudulently, which suggestion shows that the execution of the Sale Deed was not disputed. The copy of the civil suit filed by Purshotam Dass was not brought on record to substantiate this plea. Since the plea regarding the execution of the Sale Deed was never challenged, it is impermissible to challenge it during the Regular Second Appeal.

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Reliance was placed upon the copy of judgment (Ex.P4) in which it was held that the defendant had no right over Khasra No. 383. This judgment was passed on 29.11.1985, and the Sale Deed was

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executed on 1.7.1991. Thus, the Sale Deed was executed after the finding recorded in the earlier suit and will not help the plaintiff.

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Therefore, there is no misreading of oral and documentary evidence, pleading of parties, revenue record, judgment, and the Sale Deed. Hence, this substantial question of law is answered accordingly.

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: Substantial question of law No.2

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It was submitted that a co-sharer cannot raise a construction over the land without getting it partitioned, and learned Courts below erred in denying such a relief to the plaintiff. This submission cannot be accepted. The law relating to the cosharers was considered by this Court in Ashok Kapoor v. Murtu Devi, 2015 SCC OnLine HP 1422= 2016 (1) Shimla Law Cases 207, and it was held that a co-sharer cannot be restrained from raising construction on the joint land on the ground that he has no right to raise construction on the joint land. After an exhaustive review of the case law, it was held as under: -

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“46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down: -

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(i) A co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession.

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(ii) Mere making of construction or improvement of, in, the common property does not amount to ouster.

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(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.

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(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such an act, which is detrimental to his interest.

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(v) Before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of, some injury, which materially would affect his position or his enjoyment, or an accustomed user of the joint property would be inconvenienced or interfered with.

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(vi) The question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience, and the exercise of its discretion, the Court will be guided by consideration of justice, equity and good conscience.”

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This judgment was followed in Piar Chand and Others

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Versus Sandhya Devi and Others 2017 (2) Shim.LC 1040 and it was held after quoting the above para that where the plaintiff had

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failed to produce evidence to prove that the proposed construction of the defendants would diminish the value or utility of the property or the same is detrimental to the interest of other co-owners, including the plaintiff, the suit could not have been decreed.

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Similar is the judgment in Ramesh Kumar v. Sheetal, 2021 SCC OnLine HP 89 = 2021(1) Shim.LC 377 , wherein it was observed:

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“17. It is quite apparent from the aforesaid exposition of law that a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply because he is a co-owner, unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession. The mere making of construction or improvement in the common property does not amount to ouster; rather, if by any act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property. If the acts of the coowner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such an act, which is detrimental to his interest.”

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A similar view was taken in Rattan Singh vs. Som Dutt

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and Others 2023 (1) Shim. LC 446 wherein it was observed:

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“11. From the pleadings and record, two facts become

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clear: one is that the suit land is technically a joint inter se parties, and second, the defendants are co-owners in the suit land. It is settled law that a co-sharer cannot seek a restraint order against another co-sharer merely because the land is joint, until and unless the plaintiff succeeds in proving that such construction would amount to his ouster. If the plaint and the petition filed in this court are seen, there are no grounds pleaded qua question of ouster or prejudice, if any, being caused to the plaintiff. The plaintiff admittedly has raised a construction on the suit land and has filed the suit, when the defendants started raising construction.”

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In the present case, the plaintiff had not claimed that

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the construction being raised by the defendant would amount to his ouster or that the value or utility of the property would be decreased. Thus, the plaintiff cannot seek an injunction on the ground that a co-sharer cannot raise construction on the joint land.

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It is undisputed that the suit land is Abadi Deh, which is meant for raising construction. It was laid down by the Punjab & Haryana High Court in Sant Ram Versus Daya Ram AIR 1961 Punjab 528 that a co-owner cannot file a suit to restrain another co-owner from raising construction in Abadi Deh unless the land is reserved for a common purpose or the area of the Abadi Deh has been reduced to such an extent that further construction is impracticable. It was observed:

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“52. In the rural areas of Punjab, where customary law holds the field, there are special features governing the right of the proprietors and non-proprietors as to bringing vacant sites under possession in the Abadi. A cosharer may bring into his use and possession a vacant site which is not reserved for the common use of the villagers. In the absence of special circumstances, such as a coproprietor being already in possession of more than his share of the village Abadi, or the particular site having some special value, or where the unoccupied and vacant site in the Abadi has already been reduced to an extent making it undesirable for further appropriation, a cosharer will not be restrained from bringing into his use and possession a portion of the vacant site.

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But in the case of a dwelling house, in the village, each proprietor has a right of property and the right entitling him to exclusive possession regardless of the fact whether the area in actual occupation of a proprietor is in excess of what he would be entitled to in the event of partition. The village Abadi has special incidents the analogy of which cannot be incorporated into other cases of joint ownership (vide Rattigan's Digest of Customary Law, paras 233, 234 and 235 ).

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In Abadi deh, every proprietor can build a kotha, and in fact, Abadi deh is meant for this purpose and for other common purposes of the village; and a suit for an injunction to remove the kotha is not maintainable in the absence of proof of material and substantial injury, and other circumstances mentioned above (vide AIR 1929 Lah 499 ).

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The plaintiff had nowhere asserted in the plaint that the

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area of the Abadi Deh was reduced to such an extent that further

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construction thereon was not possible, or that the area was reserved

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for some common purposes. Hence, the relief of injunction could not have been granted in favour of the plaintiff.

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Hence, this substantial question of law is answered accordingly.

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Substantial Question of Law No. 3:

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The plaintiff cannot rely upon the earlier judgment and decree because it was an executable decree, and the remedy of the plaintiff was to file an execution. He could not have filed a civil suit for executing a decree and rely upon the previous decree in the fresh suit² . The facts proved on record in the present proceedings show that the defendant had purchased part of the suit land and became the co-owner with the plaintiff. Therefore, he could not have been restrained, and this substantial question of law is answered accordingly.

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It was submitted that the learned Appellate Court had relied upon the amended written statement, which vitiated the finding. The submission will not help the appellant. The reliance upon the amended written statement did not make any difference to the outcome, and secondly, no substantial question of law was framed regarding the reliance upon the amended written statement.

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2 Kata Singh v. Jaswant Singh, 2002 SCC OnLine P&H 1109

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This plea cannot be raised during this second appeal in the absence

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of substantial questions of law³ .

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Final Order: