Arvind Pathania and another vs Balwant Singh

This petition under Article 227 of the Constitution of India is directed against the judgment passed by the learned Additional District Judge-II, Kangra at Dharamshala (Camp at Jawali) whereby he dismissed the miscellaneous appeal filed by the petitioners against the order passed by the learned trial Court on 14.10.2014 dismissing the application filed by them under Order 39 Rules 1 and 2 CPC.

The case as set up by the petitioners was that the parties alongwith other co-sharers are in joint possession of the land comprised in Khata No.55, Khatauni No.100 min, Khasra No.1413/850, area measuring 00-01-58 Hms ( hereinafter referred to as the suit land).

It was alleged that the suit land had been wrongly shown in the ownership and possession of the respondent in the jamabandi for the year 2007-08, as previously, the suit land was infact part of the land comprised in Khata No.44, Khatauni Nos.118 to 125, Khasra No.850, measuring 0109-93 Hms which had been partitioned amongst several co-sharers. As regards Khasra Nos. 1380/850 and 1413/850, measuring 00-36-41 HM, the same was allotted to the defendant/respondent, whereas, half share of Khasra No.1414/885, measuring 0-72-82 HM was allotted to the petitioners and Arti Pathania and remaining half share to Sahib Singh. It was pleaded that the predecessor-in-interest of the petitioners had constructed a residential house and a boundary wall in previous Khasra No.850 which is now located in Khasra Nos.1413/850 and 1414/850. It was further alleged that the land comprised in Khasra No.1413/850 had been wrongly allotted to the respondent in partition proceedings. Though, appeal was preferred before the SDO (C), Jawali, however, the same was dismissed vide order dated 17.09.2010 and the matter is now subjudice before the Divisional Commissioner, Kangra. It was claimed that the petitioners are still in peaceful possession of the suit land and the respondent is trying his level best to dispossess them. Hence, the suit alongwith the application.

As observed earlier, the application was dismissed by the learned trial Court vide order dated 14.10.2014 leading to the filing of the appeal before the learned District Judge. The respondent filed his objections to the application raising preliminary objections regarding maintainability, cause of action, resjudicata, suppression of material facts etc. On merits, it was pleaded that previously predecessor-ininterest of the petitioners, Kalyan Singh alongwith his brother Sahib Singh had filed a Civil Suit No.153/2006 against the respondent which was dismissed vide judgment and decree dated 01.01.2007 whereby the orders of partition were upheld. The possession of the suit land already stood delivered to the respondent on 15.11.2003, as is evident from the daily diary report No.143 made by the revenue officials in discharge of their official duties. It was lastly averred that since the respondent was in exclusive possession of the suit land, therefore, the question of granting injunction did not arise.

The learned first appellate Court after discussing the law on the subject proceeded to consider the application and dismissed the same in the following manner:-

"PRIMA-FACIE CASE.

From the perusal of the pleadings of the parties as well as documents it is revealed that the partition proceedings were finalized by AC-1st Grade Jawali on 5.9.2003. Thereafter, after almost three years the predecessor-in-interest of the applicants (Kalyan Singh) firstly, filed a Civil Suit No.153/06 on 30.6.2006. The Ld. Civil Judge (Sr.Div.) Jawali rejected the plaint on the grounds that there is no cause of action for the plaintiffs to file the suit and the plaint is barred by section 171 (2) (xvii) of the HP Land Revenue Act, 1954. Kalyan Singh also agitated the partition proceedings before SDO (C) on 8.8.2006 which was also dismissed on 17.9.2010 on the ground of limitation. Now, as per applicants, they have preferred revision against orders of SDO(C) before Divisional Commissioner, Kangra.

The daily diary report No.143 of 15.11.2003 shows that the possession of the suit land was delivered to the respondent. Further, the Jamabandi for the year 2007-08 clearly shows that the respondent is in the possession of the suit land. It is well settled that the relief of injunction is available only to a person who is in possession. An injunction restraining disturbance of possession cannot be granted in favour of the applicant who is not found to be in possession.

Thus, weighing the respective case of the parties, on the basis of pleadings and documents attached therewith, it primafacie appears that the respondent is in possession of the suit land which was delivered to him in the year 2003 and in such circumstances it cannot be said that the applicant is having prima facie case.

BALANCE OF CONVENIENCE.

The applicants are apprehending that in case the respondent is not restrained by way of temporary injunction he may disturb the peaceful possession of the applicants and may also change the nature of the suit land. Since on the basis of documents placed on record it cannot be said that the applicants are in possession of suit land, hence the apprehension of the applicants is ill-founded. In these circumstances if the respondent is restrained by way of temporary injunction it will certainly have prejudicial impact on the possessory interest of the respondent whereas there would be no detrimental effect on the rights of the applicants, as in the partition proceedings the possession of the suit land has been delivered to respondent way back in 2003 and the applicants after being unsuccessful in previous Civil Suit No.153/06 filed the present suit after lapse of almost nine years. Thus, the balance of convenience lies in favour of the respondent, as by comparing the case of the parties comparative mischief, hardship or inconvenience which is likely to be caused to respondent by granting injunction will be greater than that which is likely to be caused to the applicants by refusing it. Hence, the balance of convenience is tilted in favour of the respondent.

IRREPARABLE LOSS AND INJURY.

As discussed above, the applicants cannot be said to be in possession of the suit land hence no discernible loss or injury to the applicant can be visualized. Thus, there appears no perceivable loss and injury to the applicants."

It is vehemently argued by Shri Ajay Sharma, learned counsel for the petitioners that the findings recorded by the learned both the Courts below are not only perverse inasmuch as they have failed to take into consideration the factual as also legal aspects of the matter and have un-necessarily been influenced by the so-called partition proceedings that have been conducted in connivance with the revenue officials that too behind the back of the predecessor-in-interest of the petitioners.

On the other hand, Shri R.K.Sharma, learned counsel for the respondent, has vehemently opposed the petition by claiming that the conduct of the petitioners and their predecessor-in-interest throughout has been unfair and respondent has unnecessarily been dragged into an unwanted and otherwise avoidable litigation. I have heard the learned counsel for the parties and gone through the records of the case.

It is evident from the material placed on the record that the partition proceedings were finalized by the AC 1st Grade, Jawali, on 05.09.2003. However, the specific stand of the petitioners is that these proceedings were finalized behind their back. However, the copies of the zimini orders placed on record as Annexure P-5 would clearly indicate that appellant Sahib Singh was present before the Assistant Collector 1st Grade on 18.10.2002 when the proceedings were adjourned to 18.11.2002. On 18.11.2002, both Sahib Singh and Kalyan Singh, the predecessor-in-interest, of the petitioners, were proceeded ex parte as they inspite of service did not appear.

Thereafter, the Collector proceeded to frame the mode of partition and revenue papers were sent for partition at the spot. The Field Kanungo and Halqua Patwari sent notice dated 07.06.2003 to the predecessor-in-interest of the petitioners to be present on the spot for conducting the partition at the spot on 13.06.2003. This notice was duly received by Kalyan Singh, predecessor-in-interest, of the petitioners. On 13.06.2003, partition was conducted at the spot with the consent of co-owners including the predecessor-in-interest of the petitioners, who on the said date made the following statements before the Field Kanungo:- "the area shown in the partition is acceptable to us. We have seen the partitioned land and have understood and we agree to the said partition."

Notably, no objection to the partition was raised before the Field Kanungo as well as Tehsildar-cum-A.C. 1st Grade, Jawali and resultantly on 06.10.2003, the Tehsildar-cum-A.C. 1st Grade, Jawali, passed the orders that no objection was raised qua the partition conducted on the spot by the field revenue staff and the limitation to file had expired. Balwant Singh was directed to submit the non-judicial stamp papers for preparation of partition papers (Sand Takseem). The instrument of partition was prepared and thereafter warrant of partition was issued for 15.11.2003 pursuant to which the respondent was delivered land falling to his share comprising Khasra No.1413/850, apart from other land. It is thereafter that the respondent is coming in continuous possession of this land alongwith other land. Even the mutation vide mutation No.241 stands attested in his favour.

It appears that the petitioners thereafter filed a Civil Suit titled ''Sahib Singh versus Balwant Singh and predecessor-in-interest of the petitioners Shri Kalyan Singh was also party to the suit and had filed the same through his General Power of Attorney, who happened to be third co-owner. The suit was registered as Civil Suit No.153/2006, wherein the respondent filed written statement and took specific plea that the Court had no jurisdiction to try the suit as partition had already been effected and possession delivered on 15.11.2003 by executing the instrument of partition pursuant to which orders passed to this effect on 06.10.2003. Resultantly, the suit was ultimately dismissed vide judgment and decree dated 01.01.2007 on the preliminary issue regarding the plaint being barred under Section 171(2)(xvii) of the H.P. Land Revenue Act.

Notably, no appeal against the aforesaid judgment and decree was preferred by the petitioners. Thus, the entire story cooked up by the petitioners that they have no knowledge about the partition or that there has been no delivery of possession in terms of the instrument of partition appears to be cock and bull story.

Importantly, while filing the instant petition, the petitioners have not even cared to make a whisper regarding the dismissal of the earlier suit i.e. Civil Suit No.153/2006 between the same parties. To say the least, the conduct of the petitioners is not above board.

Once it is found and firmly established that a party has approached the court with a false stand, then it is the settled principle in law that such party is not entitled to the relief which is discretionary and equitable.

In V.Chandrasekaran & anr. Vs. Administrative Officer & ors, (2012) 12 SCC 133, Hon''ble Supreme Court held that a person is expected to approach courts of equity with clean hands, clean mind and clean heart. Person who seeks equity must do equity. A person cannot be enriched by causing injuries to others. Pleadings must be clear, consistent and devoid of falsehood. It was further held that persons approaching courts with tainted hands are not entitled to any relief whether interim or final. It was also observed that submitting pleadings containing false, misleading or inaccurate statements to achieve ulterior purpose, amounts to abuse of process of court and such person must not be permitted to profit from frivolous litigation. It is apt to reproduce the relevant observation which reads thus: "44.The appellants have not approached the court with clean hands, and are therefore, not entitled for any relief. Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by causing loss or injury to another. (Vide: The Ramjas Foundation & Ors. v. Union of India & Ors., AIR 1993 SC 852; Nooruddin v. (Dr.) K.L. Anand, (1995) 1 SCC 242; and Ramniklal N. Bhutta & Anr. v. State of Maharashtra & Ors., AIR 1997 SC 1236). 48. In Maria Margarida Sequeria Fernandes & Ors. v. Erasmo Jack de Sequeria (dead), (2012) 5 SCC 370), this Court taking note of its earlier judgment in Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 held:

"False claims and defences are really serious problems with real estate litigation, predominantly because of everescalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent."

The Court further observed that wrongdoers must be denied profit from their frivolous litigation, and that they should be prevented from introducing and relying upon, false pleadings and forged or fabricated documents in the records furnished by them to the court."

In view of the aforesaid discussion, this Court has no hesitation in affirming the order and judgment passed by the learned Courts below and since the petitioners have resorted to false plea and on the basis of such false plea have even managed to get an order in their favour at one stage, therefore, no leniency is required to be shown to such type of litigants. Accordingly, not only the petition is dismissed, but the petitioners are also burdened with costs assessed at `20,000/- which shall be paid by the petitioners to the opposite party within a period of one month from the preparation of the certified copy of this order, failing which the respondent shall be at liberty to execute this order before the learned trial Court.

The petition is disposed of in the aforesaid terms. The pending application, if any, also stands disposed of.