Mst. Devli vs Shri Kalyan Chand and Others

Sanjay Karol, J.—This is the regular second appeal filed u/s 100 of the Code of Civil Procedure, assailing the judgment dated 28.12.2001 passed by the learned District Judge, Chamba Division, Chamba, H.P. in Civil Appeal No. 24 of 2000, titled as Mst. Devli versus Shri Kalyan Chand and others affirming the judgment dated 3.11.2000, passed by Sub Judge, Chamba, District Chamba, H.P. in Civil Suit No. 35 of 1994, titled as Sh. Kalyan Chand Vs. Mst. Devli and others. Plaintiff Kalyan Chand, respondent No. 1 herein filed a suit for permanent prohibitory and mandatory injunction against Smt. Devli, the present appellant and respondents No. 2 to 15 herein. The Trial Court, based on the pleadings of the parties framed the following issues:-

(1) Whether the suit property is jointly owned and possessed by the parties as alleged? OPP.

(2) Whether the plaintiff has a cause of action? OPP

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

(4) Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD

(5) Whether the plaintiff has locus standi to sue? OPP

(6) Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD

(7) Whether the plaintiff is entitled to a decree of demolition of construction as claimed? OPP

(8) Relief.

After taking into consideration the evidence so led by the parties, based on the material on record, the Trial Court decreed the suit in the following terms:-

Cumulative effect of all the discussion made above and conclusion arrived at supra is that the suit of the plaintiff succeeds and I hereby pass a decree for permanent prohibitory injunction in favour of the plaintiff and against the defendant No. 1 from raising any further construction over the suit land. Secondly, I hereby pass a decree for mandatory injunction in favour of the plaintiff and against the defendant No. 1 to demolish the house constructed by her in Khasra No. 976 and to restore it to its original position. All the expenses of demolition will be heard by the defendant No. 1. Decree sheet be prepared.

Aggrieved thereof, defendant No. 1 filed appeal which also stands dismissed by the lower appellate Court.

The instant appeal was admitted on the following substantial question of law:-

Whether the learned courts below were right in concluding that the respondent No. 1 to be a co-sharer when admittedly in the sale deed executed in favour of the plaintiff/respondent khasra No. 966 and 976 had been specifically excluded?

Having heard learned counsel for the parties as also perused the record, I am of the considered view that no question of law, much less substantial question of law, arises for consideration in the present appeal.

Noticeably, parties have been litigating since the year 1994 and all litigations must come to an end at some stage. Plaintiff has been able to establish on record that the property in question was jointly owned and possessed by the parties and that defendant No. 1, raised construction over the suit land, to the exclusion and ouster of the plaintiff despite his repeated requests. Construction over the suit land commenced on 27.1.1994. Plaintiff sent a legal notice as also telegram asking the defendant to stop with the same. Defendants'' plea of prior partitioning of the land in question, over which the house stood constructed and cordoned off by her, stands concurrently rejected by the Courts below. There is no reason to interfere with such findings. The Courts have also taken into account the revenue entries which clearly reflect the parties to be in joint ownership and possession.

Hence, for all the aforesaid reasons, it cannot be held that the findings returned by the Courts below are illegal, perverse and erroneous, warranting interference by this Court. The appeal is accordingly dismissed.