Rattani vs Amrit Lal

Sureshwar Thakur, J.

The instant appeal stands directed, against, the verdict pronounced, by, the learned First Appellate Court, whereunder, it, after partly allowing the

defendant’s appeal, as reared therebefore, rather hence affirmed, the decree, rendered, by the learned Civil Judge (Junior Division), Sarkaghat,

District Mandi, visÂaÂvis, the decree of permanent prohibitory injunction, whereas it reversed, the relief of mandatory injunction, recorded, visÂaÂ‐

vis, the suit property, by the learned trial Judge. The aggrieved therefrom, has, hence preferred the instant appeal, before this Court.

Briefly stated the facts of the case are that the parties to the suit along with other coÂsharers were joint owners in possession of land comprising

khewat No. 145, khatauni No. 241, khasra No. 2188, 2194 and measuring 0Â 06Â89 hectares, situated in village Jamsai/226, Tehsil Sarkaghat, District

Mandi. The defendant had purchased 9/135 share of Smt. Satya Devi of the suit land and thus he had become joint owner of the same along with the

plaintiff and other coÂsharers. On 12.6.1999, the defendant constructed a Dhara towards front side of khasra No. 2195/1 with a motive to occupy the

best and valuable portion of the suit land. Despite fact that partition case was pending before the Assistant Collector 1st Grade, Sarkaghat. The

plaintiff prayed for a decree of permanent prohibitory injunction for restraining the defendant from raising construction over the suit land till partition

and for mandatory injunction directing the defendant to demolish the Dhara constructed by him.

The defendant contested the suit. He filed written statement, wherein he alleged that the joint land was partitioned among the coÂsharers in a

private partition, all the coÂsharers had been coming in separate possession of their respective share since the time of private partition. The defendant

had purchased share of Smt. Satya Devi and thus he become joint owner in possession of the suit land. The defendant had raised construction on a

portion, which was in possession of Smt. Satya Devi. Thus, the construction was within his own share. The defendant also contested the suit on

preliminary objection such as cause of action, nonÂ​joinder of necessary parties and estoppel. In nut shell the defendant refuted the case of the plaintiff

and he prayed for dismissal of the suit.

On the pleadings of the parties, the learned trial Court struck the following issues interÂ​se the parties at contest:Â​

Whether the suit land is joint interse the parties? OPP.

Whether the defendant has raised construction over the part of suit land i.e. of plaintiff and other coÂ​sharers to the prejudice of plaintiff? OPP.

Whether the construction in the form of Dhara raised in khasra No. 1995/1 and 2195/1 is liable to be demolished? OPP.

Whether there is no cause of action for the plaintiff to file the present suit? OPD.

Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD.

Whether the suit is bad for nonÂ​joinder of necessary party? OPD.

If issue No.1 is not proved whether suit has already been privately partitioned? OPD.

Relief.

On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, hence decreed the plaintiff’’s suit. In an appeal,

preferred therefrom, by the defendant, before the learned First Appellate Court, the latter Court partly allowed the appeal, and, partly affirmed the

findings recorded by the learned trial Court.

Now the plaintiff has instituted the instant Regular Second Appeal before this Court, wherein, she, assails the findings recorded, in its impugned

judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 7.9.2007, this Court, admitted the appeal, on,

the hereinafter extracted substantial questions, of, law:Â​

i) Whether the learned lower appellate Court being last court of facts is right in not discussing the entire oral as well as documentary evidence as

required of it in view of the law laid down by the Hon’ble Apex Court reported in 2000 (5) SCC page 652?

ii) Whether the impugned judgment and decree is result of complete misreading, mis interpretation as well as misÂappreciation of statements of

PWÂ​1, PWÂ​3 and of document exhibit PWÂ​3/A?

iii) Whether the impugned judgment and decree is the result of nonÂconsideration of law laid down with respect to raising of construction by coÂ‐

sharers over a best portion of land until it is legally partitioned?

Substantial questions of law No. 1 to 3.

Uncontrovertedly, the apt proceedings, for subjecting, the, undivided suit property, for dismemberment by metes and bounds, are, yet pending before

the revenue officer concerned. However, prior thereto, the defendant, one Amrit Lal, purchased an area measuring 46 square meters, from, one of the

coÂsharers, in, the undivided suit property, namely one Smt. Satya Devi. The aforesaid purchase, of, land hence, holding an area measuring 46 square

meters, and, as borne in the undivided suit property, rather occurred in the year 1997. Consequently, the defendant Amrit Lal became a coÂsharer, in,

the suit property. However, subsequent thereto, and, prior to the institution of the suit, he raised a Dhara, upon, the apt area in respect whereof, his

alienor, had exclusive possession, (a) and, as a sequel thereof, the exclusive possession, of a part, of the undivided suit property, appears to stand

capitalized, by one Amrit Lal, for, his hence proceeding to raise a Dhara thereon. It is a trite canon of law, (b) qua, till dismemberment(s), of, the

undivided suit khasra number hence occurs, (c) no co owner being empowered to make any exclusive use of any part, of, the undivided suit

property, except with the consent, of, other recorded coÂsharers. Moreover, till dismemberment, of, the undivided suit property hence occurs,

thereupon any exclusivity of possession, qua any part of the undivided property, as held by any coÂowner, is, rather unamenable, for, rearing any

interpretation, (d) qua, it hence rather enabling the apt coÂowner to subject, it, to his exclusive use, (e) imperatively, when the trite canon, rather

underlying, the jurisprudential concept of joint property, is, qua community of possession and unity of title, hence, inhereing in all the recorded coÂ‐

owners, visÂaÂvis, the apt undivided suit property, (i) thereupon any holding, of, any exclusivity of possession, of, any part of the undivided suit

property, by any coÂsharer(s) being rather construable, qua his holding constructive possession thereof, even, for other coÂowners. However, the

aforesaid principle may suffer some dilution, upon, existence of direct evidence, and, its hence displaying qua, under a valid private partition, the apt

possession of the contested parcel of land, rather being delivered, to the coÂowner concerned. However, the aforesaid evidence, does not, exist on

record, thereupon the aforesaid jurisprudential principle rather inhereing, the, concept of coÂ​ownership, hence, continues to hold its sway.

Be that as it may, the defendant could well proceed to raise a Dhara, on, a portion of the undivided suit property, (i) upon, his establishing, qua the

area thereunderneath hence falling to his share, in, the undivided suit property, (ii) besides his also establishing, qua the Dhara as raised, also falling

within his share in the undivided suit property, (iii) it not occupying the best valuable portion, of, the undivided suit land. However, for determining

whether apparently, the raising of a Dhara, on the undivided suit khasra number, hence standing borne in an area, falling beyond his apt share, and,

also for further determining, qua the Dhara, as raised by him, upon, a part of the undivided suit property, hence comprising, the best valuable portion, of

the undivided suit property, (iv) it is imperative to bear in mind, the, statement of PWÂ3, wherein he has echoed, qua the portion, of the undivided suit

property, whereon the defendant, has raised the apt Dhara, rather not comprising, the, best valuable portion of the undivided suit khasra number, (v)

besides with firm evidence existing on record, qua, the Dhara occupying an area of 12 square meters, of, the undivided suit property, (vi) whereas with

defendant Amrit Lal being apparently, a, share holder, to, the extent of 46 square meters, (vii) thereupon the Dhara as raised, may hence be

concluded, to, rather occur, not, upon the best valuable portion, of, the undivided suit property, besides also a conclusion is reared qua the Dhara rather

occupying an area, hence falling within the share of Amrit Lal, in, the undivided suit property.

In aftermath, with partition proceedings, still pending, before the revenue officer concerned, and, merely a Dhara standing raised, on, the undivided

suit property, thereupon the revenue officer concerned, is, directed, to, within three months, conclude the partition proceedings. Furthermore the above

discussion also brings to the fore qua hence it being not appropriate, to invalidate the declining, by the learned first appellate Court, of, a decree, of,

mandatory injunction, (a) yet, given, the pendency of the partition proceedings, before the revenue officer concerned, (b) thereupon for his ensuring

qua the equities, interÂse, the, coÂsharers concerned, visÂaÂvis, the joint suit property being not disturbed, it is also deemed fit qua, hence, the

decree of permanent prohibitory injunction, as rendered, against, the defendant, rather warranting validation. The substantial questions of law are

answered accordingly.

For the reasons which have been recorded hereinabove, this Court holds that the learned first appellate Court, has appraised the entire evidence on

record, in, a wholesome and harmonious manner, apart therefrom, the analysis of the material on record by the learned trial Court, does not suffer,

from a gross perversity or absurdity of misÂ​ appreciation, and, non appreciation of evidence on record.

Consequently, there is no merit in the instant appeal and it is dismissed accordingly. In sequel, the impugned judgment, is, affirmed and maintained.

All pending applications also stand disposed of. Records be sent back forthwith. No order as to costs.