Rattan Lal Gupta vs Nirmal Kumar Misra

Tarlok Singh Chauhan, J.—This Regular Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant/defendant against judgment and decree dated 20.3.2002 passed by learned Addl. District Judge, Solan, District Solan, H.P. in Civil Appeal No. 39-S/13 of 2001 whereby he partly allowed the appeal of the respondent/plaintiff.

The facts, in brief, are that the respondent/plaintiff filed the suit for permanent prohibitory injunction as well as mandatory injunction against the appellant/defendant claiming that he had purchased the land comprised in Khasra No. 5071/341/3 measuring 659 sq. metres situated in revenue estate Ser Tehsil and District Solan, H.P. from the previous owner Ram Rattan and others vide registered sale deed dated 28.9.1984 alongwith the copy of jamabandi and tatima dated 27.9.1984. The plaintiff further pleaded and claimed to have raised construction on the land so purchased and the defendant has also purchased some land from the same owner but the land over which right of passage was already sold to the plaintiff was also sold to the defendant. He further pleaded and claimed to have purchased a path leading from Rajgarh road touching to the path of revenue department to the plot of the plaintiff depicted in the tatima attached to the sale deed of the plaintiff but the mutation of this path was not attested by the revenue authority wrongly. The plaintiff pleaded that the defendant started digging the path to raise construction without any right, title or interest. The plaintiff further pleaded and claimed that the suit land comprises the path shown in tatima attached with the sale deed in red colour connecting the land of the plaintiff with the HPPWD, Solan Rajgarh road as well as the Revenue Department road which has been shown 32 feet wide and this path has been pleaded and claimed to be the part of the sale deed. The suit land has been pleaded and claimed by the plaintiff comprised in Khasra No. 5069/3012/340/8 min and new khasra No. 1591 and 1592. The plaintiff has pleaded and claimed that during settlement, new khasra number has been carved out in the absence of the plaintiff by revenue official in connivance with the defendant as well as previous owners. The plaintiff has further pleaded that the defendant is subsequent purchaser thereby have no locus-standi over the path which was already purchased by the plaintiff, through registered sale deed alongwith tatima. The plaintiff sought that the defendant be restrained from digging or raising any construction over the suit land and further sought the removal of the construction raised during the pendency of the suit over the suit land.

The suit was contested by the appellant/defendant by filing written statement, in which preliminary objections qua maintainability, valuation and estoppel were taken. On merits, the defendant denied the right, title and interest of the plaintiff over the suit land and has further pleaded and claimed to be owner in possession over Khasra No. 1592 which is situated adjacent to HPPWD road and the defendant pleaded and claimed to be bonafide purchaser in good faith over the suit land. It is averred that there is no path over the suit land neither any such path has been purchased by the plaintiff. The defendant has pleaded and claimed a passage provided to the plaintiff and others by the Municipal Committee, Solan over khasra No. 1591 from the land of the owners leading upto Rajgarh road. The defendant further pleaded that during settlement over the suit land in the year 1984-85 khasra numbers of the suit land has been changed whereas the plaintiff has filed the present suit on the basis of old khasra number. The defendant further pleaded and claimed that if there is any sale in favour of the plaintiff qua the suit land, the same is illegal and nullity and thereby prayed for dismissal of the suit.

The plaintiff filed replication in which the preliminary objections taken by the defendant in the written statement and also the plea of the defendant on merits were denied. The contents made by the plaintiff in the plaint were reasserted.

On the pleadings of the parties, following issues were framed by the learned trial Court on 20.9.1993:

Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for? OPP

Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP

Whether the suit is not maintainable as alleged? OPD.

Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD

Whether the plaintiff has no locus standi to file the present suit as alleged? OPD

Whether the plaintiff is estopped from filing the present suit as alleged? OPD

Relief.

The learned trial Court after recording and evaluating the evidence was pleased to dismiss the suit. Aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff preferred an appeal before learned lower appellate Court, who vide its judgment and decree dated 20.3.2002 has partly allowed the appeal.

Aggrieved by the judgment and decree dated 20.3.2002 passed by the learned lower Appellate Court, the appellant/defendant has come in second appeal before this Court.

This Court vide order dated 6.6.2002 admitted the appeal on the following substantial questions of law:

Whether the findings of the Court below are based on misreading and misconstruction of oral and documentary evidence particularly the sale deeds Exts. PW-1/A, PW-1/G, tatima PW-1/B and the revenue records Exts. DA, DB, DC and DD to which presumption of truth is attached?

Whether the findings of the court below are perverse and based on misreading of documents of title Ext.PW-1/A, PW-1/G, PW-1/B and the statements of witnesses especially when it had been established that the plaintiff had been provided a separate passage by the Municipal Committee, Solan over khasra number 1591 from the land of the others leading upto Rajgarh road and the defendant having purchased the land including the land in dispute and the description of 32 feet area was of the path and not the width of the road?

Whether the plaintiff was entitled to discretionary relief of injunction in respect of land purchased by the defendant on which there was no passage?

I have heard learned counsel for the parties and have also gone through the records carefully.

Since all the substantial questions of law somewhat are interconnected and inter-related, therefore, I proceed to decide the same through common reasoning.

Firstly, it would be apt to reproduce the pleadings of the parties:

"(1) The plaintiff has purchased the land comprised in Khasra No. 5071/341/3, measuring 659 sq.metres from sarv Shri Ram Rattan etc. of Village Ser, vide sale deed dated 28.9.1984, copy of which is appended as Annexure ''A''. The land was purchased with an independent right of passage which has been shown in the tatima and is mentioned at page 3 of Annexure ''A''. Copy of jamabandi for the year 1987-88 alongwith tatima dated 27.9.1984 are appended as Annexures ''B'' & ''C''.

(2) The plaintiff has already raised the construction on the land and the defendant has purchased some land from the owners from whom the plaintiff has purchased the land and due to the mistake in the revenue record, the land which was sold to the plaintiff alongwith the right of passage, as is mentioned in the sale deed and necessary tatima Annexure ''C'', the owners have sold the same land to the defendant. The path which was sold to the plaintiff is clearly depicted in the tatima appended with the sale deed. The path is starting from Rajgarh Road and touching the path of revenue department which is joining the plot of the plaintiff and at the time of mutation the revenue official has not shown the path in the revenue record inspite of the fact that the same has been mentioned in the tatima which was given to the patwari at the time of attestation of mutation and due to this mistake the defendant has started digging adjoining to the path which has been constructed for the benefit of plaintiff and others by spending a huge amount and in case the defendant is not restrained from damaging the path, the plaintiff shall suffer irreparable loss and injury as the defendant is bent upon to demolish the entire path without any locus standi as the same has been purchased by the plaintiff at the time of execution of sale deed and since then he is enjoying the peaceful possession on the spot. In case the path is damaged, it would be very difficult for the plaintiff to reach to his house. Further, the plaintiff would be compelled to face the multiplicity of legal proceedings, hence this suit.

(3) It is very specifically mentioned in the sale deed Annexure ''A'' that the path would be the part of sale deed, relevant para is reproduced:

"The tatima (sketch map) is also annexed herewith and area so conveyed has been shown in red colour alongwith thirty two feet wide roads connecting the conveyed area with HPPWD Solan Rajgarh Road as well as revenue departments road running along the western boundary of the conveyed land shown in yellow colour and the said tatima is also part of this sale deed".

The defendant is taking the undue advantage of the mistake committed by the revenue agency and he is bent upon to encroach upon the path without any locus-standi and is threatening to raise the construction by damaging the path.

(3-A). The plaintiff has purchased the land and the road/path starting from PWD Rajgarh Solan Road upto his house and land as mentioned above in para 3. The said 32'' wide path/road is comprised in Khasra No. 5069/3012/340/8 min, new Khasra Nos. 1591 and 1592. The new numbers were given during settlement and same was carried out during the absence and at the back of the plaintiff and also in connivance with the defendant and his predecessor in interest (the original vendors). The defendant is a subsequent purchaser and he has no locus standi to interfere with the land and 32'' wide path comprised in old khasra Nos. 5071/340/3 and 5069/3012/340/8 min, new khasra Nos. 1624, 1591 and 1592 which were purchased by the plaintiff as is clear from the registered sale deed dated 28.9.1984 and map annexure A, B and C, specifically mentioned in the sale deed and mentioned as above in para 3 of the plaint."

The defendant filed written statement to the following effect:

"1. The contents of para-1 as alleged are wrong and are denied. The land in khasra No. 1592 at Ser Solan, adjoining to HPPWD Road and having towards its north the path in khasra No. 1591 was purchased by the defendant and he is owner in possession of the same since its purchase. The version in plaint is absolutely wrong. The plaintiff had filed the previous suit against Ram Rattan etc. and wherein this position was affirmed. The deeds etc., if any, as stated are not binding upon the replying defendants and do not confer any rights, title or interests qua the land of the defendant.

That the contents of para-2 as alleged are wrong and are denied. There was no mistake in revenue record. The land was purchased by the defendant as a bonafide purchaser in good faith and he is in possession of the same as owner as such openly and as of right. The plaintiff has no concern with the same. The proceedings in this respect were also there in the M.C. Solan where notices replies and other correspondence had taken place. The demarcation of the land was also there on 17.4.1992 and the copies of the same, will prove the aspect that version of plaintiff is wrong and is misconceived one. The position is clear from the sketch attached. The defendant has developed his plot, by spending huge amounts.

2-A. A passage on 19.10.1996 has been provided to the plaintiff and others by Municipal Committee, Solan from khasra No. 1591 from the land of owners leading upto Rajgarh Road Solan and thus the suit of the plaintiff is not maintainable. The land of the plaintiff after settlement since 1984-85 is in Khasra No. 1624 as has been assigned in settlement (bandobast) and this is before the suit and thus the suit is not maintainable on the basis of old numbers which is denied and which cannot be located and even the passage and plan of the passage per new number has not been mentioned. However, defendant is not concerned with old plan being not a party and being the bonafide purchaser in good faith of khasra No. 1592. The sale in favour of the plaintiff was and is illegal and is a nullity.

The contents of para-3 as alleged are wrong hence denied. The question of advantage as alleged is not there and the plaintiff is trying to harass the defendant without any right, title or interest and with ulterior motives.

3-A. The contents of para 3-A as stated are absolutely wrong and are denied. No passage of 32 feet width was provided and the passage has been assigned only Khasra No. 1591, and Khasra No. 1592 has no concern with the old disputed khasra Nos. and the entries of settlement, the boundaries and the settlement itself cannot be challenged at this juncture in this Hon''ble Court and after the lapse of the period of limitation. The parties to the sale deed are not the parties and the replying defendant is a bonafide purchaser in good faith and the plaintiff has no claim against him and the suit is misconceived one. The defendant has no knowledge of the sale deed as alleged nor has any connection with settlement. The passages on three sides of the plot of the plaintiff are there out of which one side the Solan Rajgarh Road is there".

The specific case of the plaintiff/respondent is that he purchased the land comprised in Khasra No. 5071/341/3 measuring 659 sq.metres alongwith an independent right of passage as has been shown in the tatima. While the case of the defendant/appellant is that Khasra No. 1592 was adjoining to HPPWD Road and having towards North the path in Khasra No. 1591 which was purchased by him and he is owner of the same since its purchase.

In this background, it would be necessary to scrutinize the sale deed executed in favour of the plaintiff/respondent Ex.PW1/A wherein at serial No. 5, the description of the property has been given in the following manner:

"DESCRIPTION OF THE PROPERTY: ALL THE VENDORS'' HUNDRED PER CENT INTEREST with all the rights belonging or appurtenant thereto including proportionate right of VENDORS of BARTANDAR, passage and use of natural springs including all sorts of easement rights etc., as resident of the village in the land comprising Khasra Nos. 5071 measuring 6300 (sixty three hundred) square feet only and comprising khata No. 29 min, Khatauni No. 61 min, situated in village SER, Pargana Takroli, Tehsil and District Solan of Himachal Pradesh, of which Vendors are hereto in peaceful possession and free from all encumbrances, charges, lien or whatsoever and butted and bounded as follows exactly:

North: Khasra No. 341/4 and 841/5 of VENDORS

South: Khasra No. 341/2 of VENDORS

East: Khasra No. 369 of Sh. Puran Singh, Jeet Ram etc.

West: Public Road about Eleven feet wide.

East to West on Northern side: One hundred and four feet.

East to West on Southern side: Ninety five feet.

North to South on Eastern side: Sixty three feet.

North to South on Western side: Sixty three feet.

The Tatima (sketch map) is also annexed herewith and area conveyed has been shown in red colour alongwith thirty two feet wide Roads connecting the conveyed area with HPPWD Solan-Rajgarh Road as well as Revenue Departments Road running along the Western boundary of the conveyed land shown in yellow colour and the said Tatima is also part of this SALE DEED."

Now, what appears from the description of the property purchased by the plaintiff/respondent is that the area purchased by him has been shown in red colour, while the path connecting the conveyed area has been shown in yellow colour. It is further clear from the description of the property that thirty two feet wide path has not been conveyed to the respondent/plaintiff but it only connects the conveyed area with the HPPWD Solan-Rajgarh Road as well as Revenue Departments Road running along the Western boundary of the conveyed land shown in yellow colour. Would the road also have been sold to the plaintiff/respondent, then it would have been identified with khasra number(s) and the same would have found mentioned in the sale deed. Moreover, the mutation on the basis of sale deed qua the path has not been attested in favour of the respondent/plaintiff. The sale deed makes a specific reference of the conveyed area which has been shown in red colour and admittedly, the path has not been shown in red colour but has been shown in yellow colour simply to identify the road connecting the conveyed area.

The learned lower Appellate Court has, therefore, completely misread the sale deed and the tatima to hold that the land in dispute had been conveyed to the respondent/plaintiff. The contents of the sale deed are absolutely clear and unambiguous and, therefore, no amount of oral evidence can dislodge the contents of this document. Further, the learned lower Appellate Court has wrongly observed that the word conveyed has been written in the sale deed qua thirty two feet wide road. This observation is based on total misreading of the document because nowhere in the sale deed does this fact find mention.

The learned counsel for the plaintiff/respondent has argued that even in case it is held that the path of thirty two feet wide has not been conveyed or sold to the plaintiff/respondent, even then the same will have to be considered as a grant in favour of the plaintiff/respondent and, therefore, no fault can be found with the judgment passed by learned lower Appellate Court. I am afraid that this contention cannot be accepted since there is no pleadings to this effect, as a result whereof, the parties were never put to trial of such question. The case of the plaintiff/respondent throughout is that the path has been conveyed to him.

Once the appellant/defendant is held to be the owner of the suit land, therefore, the respondent/plaintiff is not entitled to any injunction. Accordingly, all the substantial questions of law are answered in favour of the appellant/defendant.

In view of the aforesaid discussion, the appeal is allowed and the judgment and decree passed by learned lower Appellate Court is set-aside while the judgment and decree dated 17.7.2001 passed by the learned trial Court is affirmed, leaving the parties to bear their own costs.

Pending applications are also disposed of.