Before this Court, learned counsel for the appellants submits that even as per the findings of the learned lower appellate Court, the appellants, i.e. defendants in the suit, were found to have constructed a house on the land which was partitioned in the 1980s. However, the suit of the plaintiffs (respondents herein) has been decreed only on the ground that the partition proceedings were still in issue before the appellate authority, i.e. the Collector (SDM) and as such, further construction upon the suit property may create a hindrance in such partition. Learned counsel further submits that the suit could not have been decreed in favour of the respondents-plaintiffs, in view of the fact that they are admittedly co-sharers. A perusal of the judgment of the learned lower appellate Court (learned District Judge, Narnaul), shows that he has not upset the findings of the learned Civil Judge, to the effect that construction is existent on the spot and in fact, he has specifically recorded that even as per the plaintiffs' own admission, construction has been made by the defendantsappellants, as already noticed. All that has been eventually held by that Court, while setting aside the decree of the learned Civil Judge, is that further construction be not made by the appellantsdefendants, till the pendency of the partition proceedings. Such proceedings, as already noticed, are stated to be pending (in appeal) before the Collector, and on specific query, learned counsel for the appellants submits that there is no stay on the order of the Assistant Collector, by which the mode of partition has been determined. In view of the above, even the contention of learned counsel that an injunction cannot lie against a co-sharer, does not hold good, as partition proceedings at least at the first stage, have been finalized as submitted before this Court. Such partition has not been stayed by the appellate revenue authority, as already noticed. Consequently, if in terms of the partition, specific portions of land have been given to respective co-sharers and any of the parties is aggrieved of such mode of partition, obviously their remedy lies before the competent authority, in such partition proceeding. As regards the reasoning given for the injunction granted by the learned lower appellate Court, restraining the appellant from making further construction, during the pendency of partition proceedings, I see no error in that reasoning, it being based on the judgments cited by that Court, in an attempt to try and avoid multiplicity of litigation.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 6280 of 2015 (O&M)
Date of Decision: 26.04.2016
Ramanand and others Vs.
Dharampal
CORAM: HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Citation:AIR 2017(NOC)449 P&H
This appeal has been filed by the defendants in a suit
filed by the respondents No.2 and 3 herein, i.e. the plaintiffs
(hereinafter to the referred to as the plaintiffs), seeking
permanent injunction restraining the defendants from raising
construction over more than their share of the suit land, or from
interfering/dispossessing the plaintiffs from their share.
The suit was dismissed by the learned Civil Judge
(Junior Division), Mahendergarh, vide his judgment and decree
dated 30.11.2013, but the appeal filed by the plaintiffs was
allowed by the learned District Judge, Narnaul.
Hence, the present appeal against the said judgment
and decree dated 17.11.2015, of the learned District Judge.
2. As per the suit filed by the two plaintiffs (with the facts
being taken from the judgment of the learned Civil Judge), theplaintiffs and proforma defendants No.8 and 9 (respondents No.3
and 4 herein), are co-sharers to the extent of a half share of
agricultural land falling in Khewat No.2, Kitta No.13, measuring
55 kanals and 11 marlas, in village Jasawas, as per the
'jamabandi' (record of rights) for the year 2003-04.
Partition proceedings had been initiated by the
plaintiffs in respect of the said land, before the Assistant Collector
Ist Grade, wherein the defendants (present appellants) were the
respondents.
It was further submitted by the plaintiffs in the suit,
that the defendants were constructing over a part of the suit
land, adjoining the 'phirni' (Rasta/way), without the partition
being effected and despite requests to the contrary, that no
construction should be raised, they were continuing to do so
necessitating the institution of the suit.
3. Upon notice to them, defendants No.1 to 3, 5 and 6
(presently appellants No.1 to 3, 5 and 6) filed a written
statement taking preliminary objections qua maintainability of
the suit, locus standi etc., further contending on merits that the
suit land had actually already been partitioned vide two different
“Likhtam” (writings) dated 08.04.1983 and 27.05.1988, after
which all the parties came into possession of their specific
holdings, wherein the contesting defendants received a specific
'mustatil' and killa No.19//18, measuring 5 kanal 9 marlas and killa
no.19//23 measuring 3 kanal 11 marlas land, thus totaling 9 kanals 0
marla. Upon that land they had got constructed a 'pucca' house, in which they were residing, in their specific shares. Hence, it was
contended that there was nothing further left to be partitioned
and consequently, dismissal of the suit was prayed for.
4. The proforma defendants No.8 and 9 (presently
respondents No.3 and 4), who are seen to be the brother and
mother of the plaintiffs, filed a separate written statement, also
stating that vide the aforesaid writings dated 08.04.1983 and
27.05.1988, the suit land was partitioned and the contesting
defendants had received the aforesaid portions of land, upon
which they had built their residences.
5. With no replication having been filed, the following
issues were framed by the learned Civil Judge:-
“1. Whether the plaintiff is entitled to the relief of
injunction as prayed for by him in the plaint?
OPP
2. Whether the plaintiff has no locus standi and
cause of action to file the present suit? OPP
3. Whether the suit is not maintainable? OPD
4. Whether the suit is time barred? OPD
5. Relief.”
The plaintiffs examined the first plaintiff, Dharampal,
as PW3, one Vijaypal as PW1 and Jagram as PW2. They also
tendered a photocopy of a jamabandi as Ex.P1.
The defendants examined a draftsman, Krishan
Kumar, as DW1, one Braham Kumar as DW2, Hira Lal as DW3,
Ram Chander as DW4, Jagmal Singh as DW5, Dhanpat Singh as
DW6 and defendant No.3, Jai Singh (presently appellant No.3), as DW7.
They also tendered documents Exs.D1 to D5 in
evidence.
6. The learned Civil Judge, first entered into the question
(though no specific issue in that regard was framed), as to
whether the plaintiffs and defendants are co-sharers in the suit
land and held that they admittedly were so, as reflected in the
jamabandi (Ex.P1) for the year 2003-04; but further held that
documents Mark-A to Mark-J, which were stated to have been
relied upon in rebuttal, read with documents Marks D1 to D5,
cumulatively show that partition proceedings had already taken
place. Thus, that learned Court concluded that the relief sought
was accordingly only with regard to the construction (in any case,
it being only a suit seeking permanent injunction against raising
such construction).
Thereafter, holding that in terms of Section 41(h) of
the Specific Relief Act, 1963, since an efficacious alternative
remedy of partition was available, the relief of injunction was
barred.
Further, citing a judgment of a Division Bench of this
Court titled as Bachan Singh v. Swaran Singh, (2000 (3) RCR
(Civil) 70), it was further held by the learned Civil Judge that a
co-owner who was not in possession of any part of the property,
cannot be entitled to seek an injunction against another co-owner
who has been shown to be in exclusive possession of common
property, unless any act of the person in exclusive possession,amounts to ouster of the co-owner. It was further held that
merely constructing on such common property, does not amount
to ouster. It was also held in that case that a co-owner can seek
injunction to prevent such an act as would diminish the value or
utility of the property and which is detrimental to his interest.
Citing the above, it was further found by the Civil
Judge that the partition proceedings had already been decided
and only an appeal was pending and as such, no relief of injunction
could be granted to stall the partition proceedings. Hence, the
suit was held not to be maintainable and was dismissed.
7. In the appeal filed by the plaintiffs, the learned District
Judge also found that the plaintiffs and the defendants are cosharers
in the property and that even as per the admission of the
plaintiffs, the defendants had constructed their houses, whereas
the plaintiffs had not. It was also found that a suit for partition
was pending before the SDM, Mahendergarh (the learned District
Judge was obviously referring to the appeal pending before the
said authority in his capacity as the Collector, the Assistant
Collector Ist Grade being a Tehsildar).
However, as regards the family partition stated to
have been effected vide the writing dated 08.04.1983
(Ex.DW2/B) and the writing dated 27.05.1988 (Ex.DW3/B), it
was held that such a private partition is necessarily to be
reflected in the revenue record and till such entry is made
therein, it cannot be taken into account. For holding as above,
the learned first Appellate Court relied upon a judgment of this Court in Darbara Singh & Ors. v. Gurdial Singh and Ors.,
(1994 (2) Latest Judicial Reports 175).
Citing the judgment of the hon'ble Supreme Court in
Maharwal Khewquaji Trust (Regd.), Faridkot v. Baldev
Dass, (2004) 8 SCC 448, learned District Judge held that in
disputes of this kind, the Court should try and save the property,
as also its nature and character, during the pendency of the suit
as it may lead to loss or damage to the parties who may
ultimately succeed, leading to multiplicity of litigation.
Another judgment of this Court in Sukhwant Singh &
Others v. Garja Singh & Ors, (2014 (1) Latest Judicial Reports
781) was also cited in this regard.
Hence, holding that with the appeal in the partition
proceedings still pending, the learned Civil Judge erred in refusing
to grant injunction. Consequently, the appeal of the plaintiffs
was accepted by the learned first Appellate Court and the suit
decreed in their favour.
8. Before this Court, learned counsel for the appellants
submits that even as per the findings of the learned lower
appellate Court, the appellants, i.e. defendants in the suit, were
found to have constructed a house on the land which was
partitioned in the 1980s. However, the suit of the plaintiffs
(respondents herein) has been decreed only on the ground that
the partition proceedings were still in issue before the appellate
authority, i.e. the Collector (SDM) and as such, further
construction upon the suit property may create a hindrance in such partition.
Learned counsel further submits that the suit could not
have been decreed in favour of the respondents-plaintiffs, in view
of the fact that they are admittedly co-sharers.
A perusal of the judgment of the learned lower
appellate Court (learned District Judge, Narnaul), shows that he
has not upset the findings of the learned Civil Judge, to the effect
that construction is existent on the spot and in fact, he has
specifically recorded that even as per the plaintiffs' own
admission, construction has been made by the defendantsappellants,
as already noticed. All that has been eventually held
by that Court, while setting aside the decree of the learned Civil
Judge, is that further construction be not made by the appellantsdefendants,
till the pendency of the partition proceedings. Such
proceedings, as already noticed, are stated to be pending (in
appeal) before the Collector, and on specific query, learned
counsel for the appellants submits that there is no stay on the
order of the Assistant Collector, by which the mode of partition
has been determined.
In view of the above, even the contention of learned
counsel that an injunction cannot lie against a co-sharer, does
not hold good, as partition proceedings at least at the first stage,
have been finalized as submitted before this Court. Such partition
has not been stayed by the appellate revenue authority, as
already noticed.
Consequently, if in terms of the partition, specific portions of land have been given to respective co-sharers and
any of the parties is aggrieved of such mode of partition,
obviously their remedy lies before the competent authority, in
such partition proceeding.
As regards the reasoning given for the injunction
granted by the learned lower appellate Court, restraining the
appellant from making further construction, during the pendency
of partition proceedings, I see no error in that reasoning, it being
based on the judgments cited by that Court, in an attempt to try
and avoid multiplicity of litigation.
However, to clarify, it is held that the decree issued by
the learned first appellate Court, would not be interpreted to
mean that it binds the revenue authorities. The parties would
abide by the partition effected by the competent authority in the
proceedings pending there, as would reach finality before the last
revenue authority or thereafter the judicial court seized of those
proceedings.
In case of any delay by the revenue authorities in
deciding the appeal, the appellants would naturally avail of their
remedies against such delay.
With the above observations, this appeal is dismissed.
(AMOL RATTAN SINGH)
JUDGE
April 26, 2016
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