Chanchal Kumar vs Prem Parkash and another

Sandeep Sharma

Being aggrieved and dissatisfied with the judgment dated 31.10.2017, passed by learned District Judge, Kullu, Himachal Pradesh in Civil Misc.

Appeal No. 01/2017 having been filed by the defendants, whereby order dated 10.11.2016 passed by the learned Civil Judge (Senior Division), Kullu in

CMA No. 239-vi/2014 came to be reversed, petitioner-plaintiff (hereinafter, ‘plaintiff’) has approached this court in the instant proceedings filed

under Art. 227 of the Constitution of India, praying therein to restore the order passed by trial court, after setting aside the judgment dated 31.10.2017,

as referred to herein above.

Facts, as emerge from the record are that the plaintiff filed a suit for permanent prohibitory injunction, restraining the respondents-defendants

(hereinafter, ‘defendants’) from interfering in the suit land bearing Khasra Nos. 482 and 483 situate in Phati and Kothi Kais, Tehsil and District,

Kullu, Himachal Pradesh. Plaintiff also filed an application under Order 39 Rule 1 and 2 CPC, praying therein for interim relief restraining the

respondents from interfering in the peaceful possession of the plaintiff and from raising construction over the suit land, till the final disposal of the suit.

Learned trial Court, vide order dated 10.11.2016, directed both the parties to maintain status quo qua nature, possession and construction over land in

Khata Khatauni No. 222/264 Khasra No. 483 and from encroaching over existing path over Khata Khatauni No. 200/233 Khasra No. 482, situate in

Phati and Kothi Kais, Tehsil and District, Kullu, Himachal Pradesh. Being aggrieved and dissatisfied with the order passed by learned trial Court,

defendants preferred an appeal under Order 43 Rule 1 CPC, in the court of learned District Judge, which came to be allowed vide judgment dated

31.10.2017, whereby learned District Judge, while setting aside order dated 10.11.2016 passed by the Civil Judge (Senior Division), vacated the status

quo order passed by the learned trial Court. In the aforesaid background, plaintiff has approached this court in the instant proceedings, praying therein

to restore order dated 10.11.2016 passed by learned Civil Judge, after setting aside impugned judgment dated 31.10.2017 passed by the learned

District Judge, Kullu.

Having heard the learned counsel representing the parties and perused the material available on record, this court is not persuaded to agree with the

contention of Mr. Naveen K. Bhardwaj, learned counsel representing the plaintiff that the learned District Judge, while upsetting status quo order

dated 10.11.2016, passed by learned Civil Judge (Senior Division), Kullu, has failed to appreciate the evidence adduced on record by the respective

parties in its right perspective, rather, this court finds that the plaintiff concealed material facts with regard to pendency of earlier suit, while filing suit

at hand, which admittedly came to be dismissed during the pendency of the present suit.

Similarly, this court finds that the suit land is still joint between the parties and same has not been partitioned by metes and bounds. Record further

reveals that during the pendency of the application filed under Order 39 Rules 1 and 2, CPC, plaintiff moved an application under S.151 CPC, seeking

therein police help, whereafter, land was demarcated by local commissioner. Status report filed by the police discloses that there is one under

construction building consisting of six pillars/columns and RCC slab abutting to Pakka road. Status report further reveals that the construction material

was found stacked under the slab and persons namely Prem Parkash (respondent No.1) and Deep lal (respondent No.2) were found raising

construction. However, as per report, construction was raised on Khasra No. 483. On the other hand, Assistant Collector, who was appointed as local

commissioner, in his report, stated that there are two under construction buildings on Khasra Nos. 483, 482, 480 and 479, one belongs to the plaintiff

and other to the defendants. It has been categorically stated by the Assistant Collector in the report that both the constructions are on Abadi Deh land,

which is admittedly joint between the parties. Interestingly, aforesaid fact never came to be incorporated by the plaintiff in his plaint or application filed

under Order 39 Rules 1 and 2 CPC, whereby he prayed for interim injunction against the defendants, as such, learned District Judge, while vacating

status quo order passed by learned Civil Judge, rightly observed that since plaintiff has not approached the court with clean hands, he is not entitled for

equitable relief of injunction.

In the case at hand, plaintiff who is one of the cosharers over the suit land, raised construction, whereas he has filed suit for prohibitory injunction

restraining the respondents from raising construction on the vacant portion of land. Once, plaintiff himself raised construction over one portion of the

land, it is not understood, how he could raise objection, if any, qua the construction on the other portion of land, by the defendants, who are admittedly

co-owners of suit land to the extent of half share. Needless to say, applicant, while seeking relief of injunction is required to show that he/she has a

prima facie case in his/her favour and balance of convenience also lies in his/her favour, but, in the instant case, aforesaid basic ingredients/conditions

are totally missing, rather, very conduct of the plaintiff suggests that he wants to take advantage of the situation.

Leaving everything aside, this court finds that the plaintiff has repeatedly filed suits against the defendants on one pretext or the other but he

himself, in his plaint, has admitted that the suit property is joint inter se parties and as per family arrangement, Khasra No. 483 has been given to him

whereas, Khasra No. 485 has been given to the respondents. Plaintiff has further averred in the application that Khasra No. 482, over which

motorable path exists, is still joint inter se parties. Record reveals that the plaintiff was not able to prove such family arrangement in the previous suits

having been filed by him. Otherwise also, revenue record placed on record by the parties clearly suggests that the suit land is joint between the parties.

Since plaintiff, while filing suit, suppressed material facts from the court, learned District Judge, rightly vacated the status quo order passed by the

learned Civil Judge.

Though, this court, finds no illegality or infirmity in the impugned judgment dated 31.10.2017 passed by the learned District Judge, and the same is

upheld, but, having taken note of the reply filed by the respondents to the application under Order 39 Rules 1 and 2 CPC, (para-1) wherein it has been

categorically admitted that land comprising of Khasra No. 483 Khata Khatauni No. 222/264 and Khasra No. 482 in Khata Khatauni No. 200/233

situate in Phati and Kothi Kais, Tehsil and District, Kullu, Himachal Pradesh, over which motorable path is constructed, is joint, this court is inclined to

modify the judgment of the learned District Judge to the extent that no construction would be carried out by either of the parties on Khasra No. 482,

on which motorable road exists. Respondents in the said para of reply to application, have categorically admitted that motorable path over Khasra No.

482 has been constructed by the parties jointly, meaning thereby that factum with regard to existence of motorable path over Khasra No. 482 is not

disputed by the respondents, as such, this court, while disposing of the present petition deems it fit to modify the judgment passed by the learned

District Judge to the extent that the parties to the lis, shall not raise any construction of any kind, over Khasra No. 482, over which motorable path

exists. Judgment dated 31.10.2017, passed by learned District Judge, Kullu, Himachal Pradesh in Civil Misc. Appeal No. 01/2017 stands modified

accordingly.

The petition stands disposed of accordingly. All pending applications stand disposed of. Interim directions, if any, are vacated. Record, if any

received, be sent back forthwith.