Anita & others vs Chain Singh (deceased) through LRs.

Sureshwar Thakur, J.

1.The instant appeal is directed by the aggrieved appellants, against, the, concurrently recorded verdicts, by both the learned courts below, whereby

they pronounced affirmative decrees of permanent prohibitory injunction, and, of mandatory injunction vis-Ã -vis the suit property, and, against the

defendants’.

Briefly stated the facts of the case are that the plaintiff filed a suit for permanent injunction, restraining the defendants from forcibly ousting plaintiff

from exclusive hissadari possession, digging foundations or raising any construction by arbitrary choice or from changing nature of the land measuring

8 kanals 10 marlas bearing khewat No.801 min, khatauni No. 1131 min, khasra No. 3275 per jamabandi for the year 1980-81, situate in village Amb,

Tehsil Amb, District Una, H.P. till final partition between the parties. In the alternative, prayer for mandatory injunction was also made directing the

defendants to remove construction marked by letters ABCD shown in red colour in the site plan attached with the plaint in case defendants succeeded

in raising construction during the pendency of the suit. It has further been submitted that the suit land is jointly owned by the plaintiff, defendant No.1

and other co-sharers but possession is with the plaintiff as hissadar. Defendant No.2 is husband of defendant No.1 whereas the other defendants are

stranger having no right in the suit land. HP PWD road is stated to be abutting the suit land i.e. Hamirpur Road and thereby land is valuable one. No

co-owner can use the land to his exclusive use.

The suit was contested by the defendants and he has filed written statement, wherein, they have taken preliminary objections of maintainability, non

- joinder, mis-joinder of parties and valuation. It has been submitted that the suit land is owned by defendant No.1, plaintiff and other co-sharers but

stated that plaintiff is not in its exclusive hissadari possession and defendant No.1 had purchased 10 marlas land out of suit land from one Surinder

Singh and others who were co-sharers to the extent of 1/3rd share vide registered sale deed dated 9.7.1997. total area was measuring 7x13 karm

abutting to the road and defendant No.1 was put in possession by the then owner and in this respect, mutation No. 4403 was also sanctioned. Earlier

the suit land was owned by one Hardev Singh, Shiv Dev Singh and predecessors of Chain Singh who were in individual possession on different parcels

of land and had also constructed shops over it and thereby all co-owners were entered as owners in possession. The shops fell down and the suit land

became vacant as abadi plot, however, possession remained with all the co-owners individually to the extent as they were owners. Exclusive

possession as hissadar was never with the plaintiff. It is also stated that partition has taken place through competent authority and in this respect,

mutation No. 4441 has been sanctioned showing co-owners in their individual possession and entries showing the land to be abadi are absolutely wrong

and have been made mechanically. The possession of 10 marlas of land is with defendant No.1, which has been purchased by her from Rattni Devi

and the same has been shown in the site plan. Earlier vendor of defendant No.1 was in possession of shops which have fell down and now defendant

No.1 has raised construction over some portion. The defendant in no way raised construction over more land than for which she was entitled nor has

gone out of possession, thus, construction raised is over the land which was put in her possession by the earlier owner. Thus dismissal of the suit with

costs has been prayed.

The plaintiff filed replication, to, the written statement, of, the defendant, wherein, he denied the contents of the written statement, and, re-affirmed,

and, re-asserted the averments, made in the plaint.

On the pleadings of the parties, the learned trial Court struck the following issues inter- se the parties at contest:-

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

Whether plaintiff is entitled to the relief of mandatory injunction for demolition of construction marked by letters ABCD shown in red in the site

plan, as alleged? OPP

Whether the suit is not maintainable in the present form? OPD.

Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD.

Whether the suit has not been properly valued? OPD.

Relief.

On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, decreed the plaintiff’s suit. In an appeal, preferred

therefrom, by the defendants, before the learned First Appellate Court, the latter Court dismissed the appeal, and, affirmed the findings recorded by

the learned trial Court.

Now the defendants have instituted the instant Regular Second Appeal before this Court, wherein they assail the findings recorded, in its impugned

judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 13.9.2005, this Court, admitted the appeal on

the hereinafter extracted substantial questions, of, law:-

i) Whether both the learned courts below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by

them, thereby vitiating the impugned judgments and decrees?

ii) Whether both the learned courts below mis-read and misappreciated oral and documentary evidence specifically Ex. D-6 dated 21.9.1987 on the

basis of the orders of the Assistant Collector dated 9.9.1997 thereby vitiating the impugned judgments and decrees?

iii) Whether suit as laid is not competent in view of the frame of the suit and without looking into this aspect of the matter, impugned judgments and

decrees as passed stand vitiated and liable to be set aside?

iv) Whether in view of the dismissal of contempt petition under order 39 rule 2-A of the code of Civil Procedure, findings now returned by courts

below qua raising of construction during pendency of suit being contrary findings vitiated the impugned judgments and decrees?. Substantial questions

of law No. 1 to 4.

Before proceeding to answer the hereinabove extracted substantial questions of law, it is, to be borne in mind, the paramount factum qua, during,

the pendency of the instant appeal, before this court, the defendants/applicants rather instituting an application before this Court, applicaton whereof,

is, cast under the provisions of Order 41 Rule 27 CPC, wherein, they hence espouse affording, of, relief, for, placing on record, certain documents,

adduction whereof, being, just and essential, for, rendering clinching findings, upon, the hereinabove extracted substantial questions of law. The

necessity of theirs’ being adduced into evidence, is, espoused to be generated (i) by reflections’ rather occurring therein, of the plaintiff, since

deceased, now represented by his LRs, alienating the suit property, hence his LRs’, nowat, holding no locus standi, to, validate the impugned

concurrent pronouncements, nor their’ holding, any, locus to press, for, their efficacious execution. Apparently, all the disclosures hence occurring

in the apposite documents, in respect whereof, leave for theirs’ being adduced into evidence, is, concerted, do sustain, the, espousal made before

this Court, by the learned counsel for the defendants/appellants, (ii) thereupon prima facie it appears, that, in case this Court assumingly hence affirms,

the, concurrently recorded pronouncements made by both the learned courts below, thereupon an untenable bestowment rather being made upon the

plaintiff/ respondent, to, enforce the apt decree(s).

Be that as it may, if the apposite leave, is, hence deemed necessary, for being granted, to, the aggrieved appellants/ defendants, and, further since

the documents, in, respect whereof leave, is, granted, to the appellants/ defendants, also, enjoins, the, further necessity, of, the apposite documents

being tendered and exhibited, with a, compatible opportunity, to the plaintiff/respondent, to adduce rebuttal evidence, (i) whereas, their apposite

tendering, exhibition, and, also, the, subsequent thereto, affording, of an opportunity, for adducing rebuttal evidence, to the respondent/plaintiff, may

appropriately, only occur, before the learned First Appellate Court, (ii) thereupon, the matter is remanded to the learned First Appellate Court, to

permit the adduction, tendering and exhibition, of, the apt documents ‘AND, whereafter, it shall afford an opportunity, to the plaintiff(s) to adduce

evidence, in rebuttal thereto, and, subsequently, it, shall record findings apposite, to the locus standi, of the plaintiff/respondent, and also, SHALL return

findings qua hence the plaintiff’s suit, for rendition of, a, decree, of permanent prohibitory injunction, and for mandatory injunction, vis-à -vis, the

suit property, being, yet maintainable, and, whether the plaintiff(s)/respondent(s) nowat, hold, any locus standi, to continue, with the civil suit or to

enforce the apt decree, as may, come hence to be pronounced.

Consequently, while exercising powers vested, in this Court, under Order 41 Rule 25 CPC, provisions whereof stand extracted hereinafter:-

“25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.- Where the Court from whose

decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court

essential to the right decision of the suit upon the merits, the appellate Court may, if necessary, frame issues, and refer the same for trial to the Court

from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall

proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [within such

time as may be fixed by the Appellate Court or extended by it from time to time].†the apt documents are directed to be tendered, besides exhibited,

before the learned First Appellate Court (a) whereafter, the learned First Appellate Court, upon, affording an opportunity to the plaintiffs’, to,

adduce apt rebuttal evidence, it, shall thereafter pronounce a fresh decision, upon, issues No. 1 and 2. However, the file of the Regular Second Appeal

shall be retained by this Court. After a decision is recorded by the learned First Appellate Court, upon the aforesaid issues, it shall, transmit its

decision, to this Court. Obviously, any aggrieved therefom, shall be, entitled, to raise objections thereto, before this Court. The learned trial Court shall

make its decision, within three months, after its receiving, the matter from this Court, and, prior thereto, it shall also ensure its ensuring prompt

effectuation of valid personal service, upon, the defendants/appellants, and, upon the respondents/ plaintiff. Meteing, of, answers, vis-Ã -vis, the

hereinabove substantial questions, of, law is hence deferred. Records be sent back forthwith. All pending applications also stand disposed of. No order

as to costs.