CMPMO/303/2022 of CHAUHAN SINGH Vs SANGITA DEVI on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACMPMO No. 303 of 2022.

Reserved On : 14th December, 2022.

Decided on : 30th December, 2022.

Chauhan Singh...Petitioner.

Versus

Smt. Sangita Devi ....Respondents.

Coram:

The Hon’ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?[1] Yes.

For the Petitioner:Mr. Romesh Verma, Advocate. For Respondent:Mr. K.B. Khajuria, Advocate.

Satyen Vaidya, Judge.

By way of instant petition, the petitioner haschallenged order dated 26.04.2022 passed by the learnedAdditional District Judge (CBI Court) Shimla, in Civil Misc.Appeal No.3-R/14 of 2021 whereby the order dated21.10.2021 passed by learned Civil Judge, Court No.2, Rohru,in Civil Misc. Application 99-6 of 2021 (in Civil Suit No. 191 of2021) has been affirmed.

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

2. Parties hereafter shall be referred by the samestatus which they hold before the learned trial Court.Petitioner is the defendant and respondent is the plaintifbefore the learned trial Court.

3. Plaintif has filed Civil Suit No. 191 of 2021 beforethe learned trial Court seeking relief of permanent prohibitoryinjunction against the defendant to the efect that he berestrained from raising any type of construction or changingthe nature of the land bearing Khata Khatauni No. 6/18,Khasra Nos. 1429 and 1430, measuring 00-20-79 hectaresituated in revenue Village Chirgaon, Tehsil Chirgaon, DistrictHimachal H.P. (hereinafter referred to as the “suit land”), tillthe partition of the suit land was efected in accordance withlaw.

4. The plaintif has filed the above noted suit on thepremise that she was one of the co-owners of the suit landand had 1/3rd share therein along with her daughters. As perplaintif, the suit land was joint with other co-owners includingthe defendant. It is further averred by the plaintif thatdefendant had already raised construction of a building on five biswas of land out of the suit land and further he hadsold four biswas therefrom in favour of Shri Shishi Ram andhis wife Smt. Sushma Devi. Accordingly to plaintif, defendantwas trying to grab more land than his share in the suit land.Plaintif also claimed her possession over the suit land. Thus,the plaintif sought decree of permanent prohibitory injunctionagainst the defendant by alleging that defendant had no rightto raise further construction on the suit land till partition ofthe same in accordance with law.5.Defendant has contested the suit of the plaintifand has filed written statement. He has claimed exclusivepossession of entire land by alleging that the same had fallento his share in a private partition between the parties, thathad taken place in the year 1986. He has further alleged thatin the private partition, the late husband of plaintif wasallotted land in Khewat No.5, Khatauni No. 16 in which he hadraised one house and now further the plaintif was raisingconstruction of another house thereon. Defendant furthersubmitted that he was raising construction after demolishingthe old structure which was in his possession throughout.

Defendant has specifically denied that he was trying tooccupy more land than his share. He specifically pleaded thathis two sisters namely Lobha Devi and Pushpa Devi hadrelinquished their entire share in favour of the defendant andhis brother Meshar Singh.

6. Alongwith the suit, the plaintif also filed anapplication under Order 39, Rules 1 and 2 of the CPC readwith Section 151 of the CPC seeking interim injunctionrestraining defendant from raising any type of construction onthe suit land. Defendant contested the application. Learnedtrial Court allowed the application by holding that the suitland is joint and till its partition defendant had no right tousurp any specific portion thereof. Learned trial Court furtherheld the right of plaintif to claim interim injunction on theground that she is co-owner and even if out of possession canseek injunction to prevent the act which is detrimental to herinterest.

7. The defendant preferred an appeal against theorder passed by learned trial Court, but again remainedunsuccessful. Learned Appellate Court also held that the suit land is joint and that the land sought to be utilized by thedefendant was valuable portion of the suit land. Suchinference has been drawn by the learned Appellate Courtfrom the fact that the defendant had sold some portion of thesuit land to third parties and had also raised construction ofanother building thereon. Learned Appellate Court furtherheld that since the suit land is a valuable portion and nopartition has taken place, the defendant was liable to berestrained and thus upheld the order passed by the learnedtrial Court.

8. I have heard learned counsel for the parties andhave also gone through the entire record carefully.

9. Perusal of contents of plaint reveal that theplaintif has filed the suit on the ground that the defendantwas trying to usurp more land than his share, to which he wasnot entitled especially till the partition of the suit land.

10. From the written statement of defendant, it comesout that defendant had pleaded right over the entire suit landon the basis of private partition. He has categorically averredthat the parties are co-owners in another khata also bearing No.5 out of which the predecessor-in-interest of plaintif hadbeen allotted land in a private partition.

11. Primarily, the relief of injunction is granted at thediscretion of the Court. Section 36 of Specific Relief Act veststhe Court with power to grant injunction at its discretion.Whereas perpetual injunction can be granted in terms ofprovisions of Section 41 of the Specific Relief Act, temporaryinjunctions are governed by provisions of Code of CivilProcedure. In order to succeed in getting the relief ofinjunction one has to qualify three way tests. He has to showexistence of a prima facie case, balance of convenience andirreparable loss in his favour. Thus, the Courts while decidingthe prayer of interim injunction have to marshal all the factsand circumstances of each case and to assess them at thetouchstone of aforesaid principles.12.Both the Courts have failed to take notice of thefact that the suit land was not the only joint land between theparties. Land comprised in Khata No.5 was also joint inter sethem as there was no rebuttal to the averments made in thisregard in the written statement. In view of the existence of

such fact, it was necessary for both the Courts to have lookedat the extent of entire joint land between the parties.Defendant has placed on record copies of jamabandis inrespect of joint land comprised in Khata No.5 and also the suitland. The entire suit land and the joint land comprised inKhewat No.5 is depicted as jointly owned and possessed byco-owners. The total area of land comprised in Khata No.5 is01-33-10 hectares and that of the suit land is 00-20-70hectares. Whereas the share of defendant in Khata No.5 ismentioned as 1/3rd equivalent to 00-68-94 hectares, in suitland his share is shown as 31/120 equivalent to 00-05-37hectares. In suit land, the share of defendant is less than hisshare in Khata No.5 as he has sold four biswas of land infavour of third parties. Thus, plaintif has total share to theextent of 00-64-31 hectares. It is not the case of the plaintifthat the defendant has occupied or trying to occupy moreland than his entire share in the joint land. Even in the suitland, defendant still has share equivalent to the extent of 14biswas after selling four biswas of land to third parties. Evenif, he has constructed a house on the suit land to the extent of five biswas, he still has share to the extent of about 9 biswasof land in the suit land itself.

13. Thus, there was no material on record which couldhave justified the allegations made in the plaint regardingdefendant utilizing land more than his share in the suit land.It is not the case of the plaintif that new construction beingraised by defendant is on more than nine biswas of land.Even otherwise at the time of partition the entire joint land inall the joint khatas between the parties will be considered forsettling the equities inter se them. Noticeably, no partitionproceedings are pending between the parties till date.

14. Further, there is no material on record to suggestthat defendant is utilizing that portion of the suit land which isof some special value. Evidently, there is no such specificpleading in the plaint and also no material has been placed onrecord to suggest such an inference. Keeping in view thelargeness of the total joint land between the parties to thesuit and other co-owners and also keeping in view the extentof share of defendant, it was incumbent upon the plaintifeither to prima facie show that defendant was in the process of usurping land more than his share or the portion of land onwhich he was raising construction, was of special value to theplaintif or was diferent from the rest of the joint land. It wasfor the plaintif to prima facie satisfy the Court that someexclusivity was attached to that portion of the suit land whichis being uilized by the defendant by raising construction.

15. The fact that the predecessor-in-interest of plaintifhad raised construction of a house and the plaintif is alsoraising new construction has not specifically been rebutted.16.I am of the considered view that the learnedCourts below have clearly erred in not appreciating andconsidering the material facts of the case. By placingrestraint on the construction being raised by defendant tillindeterminate period, the defendant will not only be deprivedfrom raising a house/building, he will also be lead to financialloss as the construction prices are escalating day by day. Inany case, the plaintif is not likely to loose equities at the timeof partition of the entire joint land between the parties,keeping in view the largeness thereof.

17. Keeping in view the facts and circumstances of thecase, the instant petition is allowed and the order dated26.04.2022, passed by the learned Additional District Judge(CBI Court), Shimla in Civil Misc. Appeal No.3-R/14 of 2021affirming the order dated 21.10.2021 passed by learned CivilJudge, Court No.2, Rohru, District Shimla, H.P. in C.M.A No. 99-6 of 2021, is set aside and the application of the plaintif forinterim injunction is dismissed. All pending applications alsostand dismissed.

30[th] December, 2022. (jai)

(Satyen Vaidya)Judge