Hans Raj vs Shiv Dayal

Rameshwar Singh Malik, J.—Defendants are in second appeal against the concurrent findings recorded by both the learned courts below, whereby suit for permanent injunction filed by plaintiff-respondent, was decreed.

Briefly put, the facts of the case as noticed by the learned first appellant court in paras 2 and 3 of the impugned judgment, are that house No. 286, Block No. XIII situated in Mohalla Kasaban, Hissar, and the land shown by letters ABCD shown in the site plan annexed with the plaint was owned and possessed by the respondents. In the year 1970, Ladha Ram, owner of house no. 287, Block No. XIII, Mohalla Kasaban, Hissar, had opened the door forcibly shown by letters CD which compelled the father of the respondents to file a suit for perpetual injunction against him. That suit was decreed by the court of Sub-Judge, Hissar, on May 3, 1972. Appeal against the judgment and decree was dismissed by the Addl. District Judge, Hissar on July 15, 1982, the title of Lachman Dass, father of the respondents qua the land marked by letters ABCD annexed with the plaint was upheld. The appellants taking advantage of the absence of the respondents, forcibly opened the door E in the wall DB shown in the site plan on June 11, 1982. The matter was reported to the police, but no action was taken. The appellants also assured the respondents to close the door E mentioned above but failed to stand on their commitment. Forced by these circumstances, the respondents instituted the present suit for perpetual injunction claiming a relief of prohibitory and mandatory injunction against the appellants restraining them from interfering in their ownership, possession and user of the site shown by letters ABCD and from using the same as a passage by opening any door or meddling with their privacy and ownership by opening any ventilator, window, door etc. A mandate was sought against the appellants for closing the door shown by letters E in the site plan annexed with the plaint.

The appellants in their written statement, traversed the averments of the respondents. According to them, the land in dispute was not the exclusive property of the respondents and was, in fact, jointly owned and possessed by all persons who are the owners of the Houses No. 284, 285, 286 and 287 which abut on this land. It was also pleaded that they were not party to the litigation and as such, judgments rendered in the earlier suit were not binding upon them. The other pleas that the suit was bad for non-joinder of necessary parties; that it was barred by time that it was not maintainable in the present form and that the respondents have no locus standi to file the suit were also raised.

On competition of pleadings of the parties, learned trial court framed the following issues:

"(1) Whether the plaintiffs are in exclusive possession as owners of the property shown as ABCD in the site plan attached with the plaint? OPP

(2) If issue No. 1 is proved in affirmative then whether the plaintiff is entitled for the relief of injunction as prayed for? OPP

(3) Whether the suit is not maintainable in the present form? OPD

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

(5) Whether the plaint is not verified according to law, if so, to what effect? OPD

(6) Whether the suit is time barred? OPD

(7) Relief."

In order to prove their respective stands taken, both parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiffs have duly proved their case. Accordingly, suit was decreed vide judgment and decree dated 6.10.1989. Feeling aggrieved, defendants filed their first appeal which came to be dismissed by learned Additional District Judge, vide impugned judgment and decree dated 2.5.1990. Hence this second appeal, at the instance of the defendants.

Learned counsel for the appellants submits that the plaintiffs have failed to prove their case. They did not lead any cogent and convincing evidence which might be said to be sufficient to decree the suit. Earlier judgment and decreed dated 15.7.1972 Ex. P-5 and Ex. P-6 have been illegally applied against the appellants, because they were not party to the earlier litigation. Since both the learned courts below have misdirected themselves, while not appreciating the true facts of the case in correct perspective, impugned judgments and decrees be set aside, by allowing the present appeal.

Having heard the learned counsel for the appellants at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction u/s 100 of the CPC (''CPC'' for short). To say so, reasons are more than one, which are being recorded hereinafter.

A careful perusal of the site plan available at page 102 of the Lower Court Record (for short "LCR") would make it crystal clear that the disputed open space was in front of the house of the plaintiffs. No part of the disputed piece of land falls in front of the house of the defendants-appellants. Appreciating the documentary or oral evidence in the correct perspective, both the learned courts below have recorded their concurrent findings. Further, appellants never claimed exclusive ownership of the suit property marked by letters ABCD. Defendants-appellants failed to produce any cogent evidence to show that the suit plot was the joint property and meant for the common use by residents of all the surrounding residential houses. Having said that, this Court feels no hesitation to conclude that the learned courts below committed no error of law, while passing the impugned judgments and the same deserve to be upheld.

Before arriving at a judicious conclusion, the learned first appellate court rightly re-appreciated the true facts of the case as well as the evidence led by the parties, so as to record his own cogent findings. Relevant findings recorded by the learned Additional District Judge in paras-14 to 16 read as under:-

"The oral evidence discussed above amply proves that the appellants have not claimed the exclusive ownership of the property marked by letters ABCD. According to them, this property is jointly owned and possessed by owners of houses No. 284, 285, 286 and 287. The appellants could hardly produce any documentary evidence to establish that the property denoted by letters ABCD is joint property of the parties. It would be hazardous to place reliance on the oral evidence led from the side of the appellants particularly when Ashok Kumar has travelled beyond the stand of the appellants because he maintained that the suit property is used by the public. Attempt was also made from the side of the appellants to come out of the judgments Ex. P3 to P7 on the plea that they were not parties to the same. No doubt, these judgments were not in rem, but in view of their definite stand that suit property was jointly owned by them as well as by Ladha Ram and the respondents, these judgments would be important piece of evidence because they negative the stand of the appellants completely.

The judgment Ex. P-3 was rendered by Sh. K.C. Gupta, the learned Sub Judge Ist Class, Hissar, on May 3, 1972. Appeal against the judgment was dismissed by Sh. K.D. Mohan, learned Addl. District Judge on 13.3.1972 and regular second appeal No. 1423 of 1972 preferred by Ladha Ram, was also dismissed by the Hon''ble High Court in March, 82. It would be appropriate to refer to the discussion contained in the last part of the judgment which reads as under:

"The learned counsel for the appellant then submitted that in the evaluation statement, it has been mentioned that an area measuring 298 sq. yards was evaluated by the Rehabilitation authorities. From this fact, the learned counsel sought to argue that only this much area had been transferred in favour of the respondent. I cannot accept this argument because while evaluating the area, the authorities concerned might have expressly evaluated the built area and might not have paid such attention to open land lying in front of house No. 286. In any event, this circumstance has also been discussed by the learned lower appellate court. The findings recorded by it have not been shown to be such as could normally be not recorded by the final court of fact. This appeal is without merit and is hereby dismissed with no order as to costs."

The judgment would also reveal that objection was also taken that the Sanand allotted to Lachhman Dass was not produced but in view of the evidence led on the file, this aspect was not given much weight. A definite direction has been given in the judgments Ex. P3 and P5 restraining Ladha Ram from interfering in the Chowk shown by letters ABCD in the site plan and from opening any door in any manner under the ownership and possession of the plaintiffs. In the present case, appellants have opened the door in the wall AB and have started using the property ABCD owned by the respondents. In view of the ratio laid down in the above judgments, this would be impermissible under the law as it has interfered in the enjoyment of the property denoted by letters ABCD exclusively owned by the respondents. The oral evidence led by there respondents in this regard is consistent with the stand taken by them and thus is corroborated by the judgments referred to above. Consequently, I find no illegality in the findings of the learned trial Judge on all the issues."

During the course of hearing, learned counsel for the appellants could not point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments. He also failed to put into service any substantive argument so as to convince this Court to take a different opinion than the one taken by the learned courts below. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine quo non for interference at the hands of this Court, while exercising its jurisdiction u/s 100 CPC. Thus, it is unhesitatingly held that the impugned judgments and decrees passed by the learned courts below deserve to be upheld, for this reason as well.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.

Resultantly, instant appeal stands dismissed, however, with no order as to costs.