Arun Bala Arora vs Ramesh Arora

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree dated 29.04.2008, passed by learned Additional District Judge (Fast Track Court) Shimla, H.P. (learned Appellate Court) vide which the judgment and decree dated 10.08.2007 passed by learned Civil Judge (Junior Division) Court No. V, Shimla, H.P. (learned Trial Court) were set aside. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience.

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 restraining the defendants from raising construction over the extended iron bars as shown in the site plan and photographs attached to the plaint. It was asserted that the plaintiffs and defendants were co-owners in the property known as Violet Cottage. They partitioned the property. The extended iron bars over the room fell into the plaintiff's share. The defendants have no right to encroach upon the plaintiff's property, but they are threatening to raise construction over extended iron bars. The plaintiff requested the defendants not to raise construction, but in vain; hence, the suit was filed to seek the relief mentioned above.

The suit is opposed by filing a written statement taking preliminary objections regarding the plaintiff being estopped from filing the present suit by her acts, omissions and commission, lack of locus standi, the suit having not been properly valued for the purpose of court fees and jurisdiction, the plaintiff having not come to the Court with clean hands and the suit being bad for mis-joinder and non-joinder of necessary parties. It was admitted that the Violet Cottage was divided between the plaintiff and defendant No.1 on 16.01.1991 in a family settlement. The property shown in green in the site plan fell to the share of the plaintiff and her children, and the property shown in red fell to the share of defendant No.1. The portion where iron bars are lying fell to the share of defendant No.1. The kitchen used to exist in the said portion. The kitchen was converted into an independent room, and the room was converted into the kitchen. The extended iron bars are part and parcel of the kitchen, which fact is also depicted in the site plan. Defendants have a right to raise construction over the land allotted to them; therefore, it was prayed that the suit be dismissed.

No replication was filed.

Learned Trial Court framed the following issue on 09.12.2003:

Whether the plaintiff is entitled for a decree of permanent prohibitory injunction, as prayed? OPP

Whether the suit of the plaintiff is not maintainable? OPD

Whether the plaintiff is estopped to file the present suit on account of his own acts, deeds and conduct? OPD

Whether the plaintiff has not approached this Court with clean hands? OPD

Whether the suit is not properly valued for the purpose of Court fees and jurisdiction? OPD

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

Relief

The parties were called upon to produce the evidence, and the plaintiff examined herself (PW-1) and Basti Ram (PW-2). The defendant No. 1 Raj Kumari examined herself (DW-1), Surinder Mohan (DW-2) and Ramesh Chand (DW-3).

Learned trial Court held that the plaintiff has a right to raise a construction over the portion allotted to her. Any construction raised by the defendant over the extended iron bars would obstruct the plaintiff's construction. The family settlement shows that the defendants' right extends to over and above the built-up area, and they cannot raise construction over the iron bars; hence, the learned trial Court answered issue No.1 in the affirmative, issues Nos. 2 to 6 in the negative and decreed the plaintiff's suit.

Being aggrieved by the judgment and decree passed by the learned trial Court, the defendants filed an appeal, which was decided by the learned Additional District Judge (Fast Track Court), Shimla, H.P. (learned Appellate Court). Learned Appellate Court held that the plaintiff did not plead that the extended iron bars belonged to her. The iron bars are part of the property, which fell to the share of defendant No.1 in partition. The area above the iron bars is the defendants' property. The defendants have every right to raise the construction above the iron bars. Learned trial Court erred in appreciating the material on record. Therefore, it was prayed that the appeal be allowed and the judgment and decree passed by the learned trial court be set aside.

Aggrieved by the judgment passed by the learned Appellate Court, the plaintiff filed the present appeal, which was admitted on the following substantial question of law on 06.08.2008: -

Whether the Lower Appellate Court has committed a grave error of law and jurisdiction in ignoring the principles of the Code of Civil Procedure. Transfer of Property Act and Easement Act in coming to the conclusion that the rights of defendants/ respondents to raise construction cannot be curtailed at the behest of the plaintiff/appellant, who has not disclosed the material injury to the plaintiff/appellant is likely to suffer. Were not the pleadings to be liberally construed?

I have heard Mr Bhupender Gupta, learned Senior Advocate, assisted by Mr Janesh Gupta, learned counsel for the appellant and Mr Mohinder Verma, learned counsel for respondent No.1.

Mr Bhupender Gupta, learned Senior Advocate, submitted that the learned Appellate Court erred in setting aside the well-reasoned judgment passed by the learned Trial Court. An Appellate Court cannot reverse the judgment passed by the learned trial Court unless it comes in close quarters with the reasoning assigned by the learned trial Court and demonstrates the fallacy in it. The learned Appellate Court failed to adhere to this principle, and the judgment passed by the learned Appellate Court is not sustainable. The defendants admitted that the land below the iron bars was allotted to the plaintiff; therefore, the plaintiff has a right to raise construction over the land allotted to her, and the learned Appellate Court failed to appreciate this fact. He prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside. He relied upon the judgment of this Court in Luckey Kumar and another vs. Rupa and another, 2016(4) ILR (H.P) 2023, in support of his submission.

Mr Mohidner Verma, learned counsel for respondent No.1, submitted that the iron bars and the area above them were allotted to defendant No. 1 in a family partition. The defendants have a right to raise a construction over the iron bars allotted to them. Learned Appellate Court had rightly accepted the appeal. This appeal does not disclose any substantial question of law. Hence, he prayed that the present appeal be dismissed.

I have given a considerable thought to the submission made at the bar and have gone through the records carefully.

Substantial question of law

Raj Kumari (DW-1) stated in her cross-examination that the land below the extended iron bars was allotted to the plaintiff. The memorandum of family settlement (Ext. DX) also mentions that portion shown in red in the site plan (Ext.D-1) was allotted to Defendant No.1-Raj Kumari, and the portion shown in green was allotted to plaintiff Arun Bala. The plaintiff, Arun Bala, stated in her cross-examination that the portion above the extended iron bars shown in the photographs (Ext.PW-1/B and Ext.PW-1/A) is part of the defendants' flat, and the land beneath the iron bars belongs to her.

Thus, the statements of the plaintiff and defendant No. 1 show that the plaintiff is the owner of the land beneath the projected/extended iron bars, whereas the defendant No. 1 is the owner of the area above the iron bars. Thus, the claim projected by the plaintiff that iron bars have fallen into her share is not correct. The plaintiff also admitted in para No. 4 of the plaint that the area above the iron bars is the defendants' property. Therefore, the Appellate Court had rightly held that the defendants, being the owners of the iron bars, have a right to raise construction over them. The plaintiff's claim is restricted to the land located beneath the iron bars, and she cannot restrain the defendant from raising construction over the iron bars.

The learned trial Court held that the plaintiff would have to raise a construction over the portion, which had fallen into her share, and any construction raised by the defendants would cause hindrance to the plaintiff's construction. This conclusion is not sustainable. The plaintiff herself admitted in para 4 of the plaint that the defendants are the owners of the property above the iron bars. Therefore, the defendants have a right to raise the construction upon the iron bars. The plaintiff is the owner of the land beneath the iron bars and is entitled to raise construction over the land up to the iron bars. It is difficult to see how any construction raised over the iron bars, which has been accepted as the boundary by the parties, would cause any inconvenience to the plaintiff. The plaintiff would be free to raise construction from the ground to the iron bar, but is not entitled to raise any further construction above the iron bars. Therefore, the learned Appellate Court had rightly held that the defendants cannot be restrained from raising a construction over the iron bars.

It was submitted that the learned Appellate Court has not come to the close quarters with the reasoning assigned by the learned trial Court before reversing the judgment of the learned trial Court. This submission cannot be accepted. The learned trial Court held that the plaintiff is entitled to raise a construction over the portion allotted to her, which would be hindered by the defendants' construction. The Learned Appellate Court has rightly held that the plaintiff cannot claim that her construction would project up to the sky because her right was restricted by the property owned by the defendant. Thus, the learned Appellate Court had demonstrated the fallacy in the reasoning of the learned trial Court before reversing it, and the cited judgment does not apply to the facts of the case.

Plaintiff did not plead any right of easement in the plaint. Even if the plaint is liberally construed, there is nothing in it to this effect. Therefore, the learned Appellate Court had rightly declined the injunction to the plaintiff, hence the substantial question of law is answered accordingly

Final Order

In view of the above, the present appeal fails, and it is dismissed, so also the pending applications, if any.

The record of the learned Courts below be returned along with a copy of this judgment.