Shri Kishan Chand and Others vs Smt. Vidya Devi and Another

V.K. Sharma, J.—This appeal at the instance of the Defendants is against the judgment and decree dated 01.07.2002, of the learned District Judge, Kullu, H.P., in Civil Appeal No. 24 of 2002, titled Smt. Vidya Devi v. Lal Singh alias Lachhman Dass and Ors., reversing the judgment and decree dated 18.03.2002, passed by the learned Senior Sub Judge, Kullu, H.P., in Civil Suit No. 91 of 2000, titled Smt. Vidya Wati v. Lal Singh alias Lachhman Dass and Ors., whereby the suit for permanent prohibitory injunction and in the alternative for mandatory injunction, filed by the Respondent herein as Plaintiff against the Appellants and proforma Respondent herein being the Defendants, has been decreed with costs.

On the death of Defendant No. 1 Shri Lal Singh alias Lachhman Dass, during pendency of the appeal before this Court, he is represented by his legal representatives, Shri Kishan Chand and others.

Brief facts of the case can be stated as follows.

The dispute between the parties concerns the land measuring 0-1-0 bigha, that is, one biswa, shown in the photo copy of tatima mark ''X'' by red line and in the site plan Ex.PW-3/A by letters A B C D, forming part of land measuring 1-12-0 bighas, comprised of Khasra No. 2358, Khata Khatauni No. 392/547, vide jamabandi for the year 1996-97 of Phati Dhalpur, Kothi Maharaja, Tehsil and Distt. Kullu, which shall here-in-after be referred to as ''the suit land''.

The case pleaded by the Plaintiff is to the effect that the aforesaid land measuring 1-12-0 bighas is recorded in the ownership and possession of the Plaintiff and Defendants No. 1 to 3 along with other co-sharers. However, joint status of this land has been severed since long, as Defendants No. 1 to 3 have constructed their houses over the same. Other co-owners have also built houses by covering their shares or by raising fence. Defendants No. 1 to 3 raised construction on the land equal to their share, leaving no vacant land. The Plaintiff had 0-4-11 bigha land in the entire khata, shown by sikmi Khasra No. 2358/1. On a portion of this land she constructed a residential house. Smt. Krishna Devi wife of Shri Dot Ram resident of Seubag, who was owner in possession of 0-1-0 bigha land in the khata, sold the same to the Plaintiff vide registered sale deed No. 714, dated 20.5.2000. The Plaintiff was put in possession of this one biswa land (the suit land) by Smt. Krishna Devi. The Defendants had nothing to do with the land owned and possessed by the Plaintiff. It was further pleaded that even if the suit land is held to be joint even in that event the Defendants would have no right to dispossess the Plaintiff from the joint possession, except in due course of law, because Defendants No. 1 to 3 have raised construction upto the extent of their share in the land, leaving no vacant land. On 28.5.2000, the Defendants without any right, title or interest started stacking construction material in the suit land and commenced construction of septic tank. Thereby they threatened to dispossess the Plaintiff from the suit land by changing its nature and also threatened to take forcible possession of the land more than their share by making unauthorized construction without approval of the building plan. If the Defendants succeeded in doing so, it would cause permanent nuisance to the Plaintiff due to foul smell emanating from the un-authorized construction of the septic tank and latrines.

The suit was contested by the Defendants by raising legal objections regarding the Plaintiff not having come to the court with clean hands and being guilty of suppression of true and material facts and thereby disentitling her for grant of discretionary relief of injunction, maintainability, delay and laches, estoppel and non-joinder and mis-joinder of necessary parties. On merits, while admitting that the joint status of the land stands already severed and the parties and other co-sharers have raised construction of houses therein, it was denied that the construction raised by them was in excess of their share or they had not left any land of their share vacant. Rather they claimed that the land covered by them under construction is less than their share. It was denied that the Plaintiff has purchased the suit land measuring 0-1-0 bigha from Smt. Krishna Devi. It was further stated that the suit land is possessed by them as owners. According to the Defendants, the Plaintiff has covered entire share of her land under construction, leaving no vacant land. Defendants No. 1 to 3 are owners in possession of the land measuring 0-9-2 bighas. They constructed two septic tanks of the depth of eight feet, put a single slab thereon about six years ago and thereafter Defendants No. 1 and 2 constructed latrine on the slab of septic tank. Such construction was completed by them in April, 2000, with the consent of the Plaintiff, who raised no objection at that time. There is sufficient distance between the house of the Plaintiff and septic tank. As such there is no question of any nuisance to the Plaintiff. Lastly, it was stated that the Defendants never intended to cover land more than their share.

A replication refuting the stand on behalf of the Defendants and reiterating the averments set up in the plaint, was filed by the Plaintiff.

On the above pleadings, the parties went to trial on the following issues:

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

Whether the Plaintiff is entitled to the relief of mandatory injunction as alleged? OPP.

Whether the suit in the present form is not maintainable? OPD.

Whether the Plaintiff is estopped from filing the suit by her act and conduct? OPD.

Relief.

After hearing the parties the learned trial court dismissed the suit by returning negative findings on all the issues.

Being aggrieved, the Plaintiff carried the matter in appeal to the court of learned District Judge successfully, as already noticed.

The appeal was admitted on the following substantial questions of law:

Whether an adverse inference should have been drawn against the Plaintiff for non-production of sale deed by her in the Court.?

Whether a cosharer can maintain a suit for mandatory injunction for demolition of an existing structure against another cosharer, specially when structure was raised without any objection from the predecessor-in-interest of such cosharer, without suing for actual possession by partition of the joint holding?

Whether a cosharer who is in possession of joint property in excess of his share can be dispossessed therefrom without actual partition by metes and bounds?

Whether the lower Appellate Court was justified in holding that the Appellants were in possession of land in excess of their share without any issue having been framed on that count?

I have heard the learned Counsel for the parties and perused the record.

Before I advert to detailed discussion and decision on the above substantial questions of law, it shall be appropriate to notice some facts emerging out of the evidence on record. As per jamabandi for the year 1991-92, Ex.D-1, one Shri Dot Ram, was recorded as co-owner to the extent of 32 shares out of 224 shares, that is, 1/9th share in the aforesaid land measuring 1-12-0 bighas. However, as per the red ink entry at Sr. No. 1, contained in the remarks column of jamabandi Ex.D-1, the said Shri Dot Ram had sold 1/7th share in the said land to one Shri Vijay Chand instead of 1/9th share of which he was the owner. Meaning thereby that he had sold land in excess of his share. It appears that it was for this reason that the earlier mutation of sale in favour of Shri Vijay Chand and by necessary implication the latter mutation in favour of Defendants No. 1 and 2, S/Shri Lal Singh alias Lachhman Dass and Kishori Lal, were subject to revision, as is apparent from the entries as Sr. No. 1 and 2 contained in the remarks column of jamabandi for the year 1991-92, Ex.D-1. To the similar effect are the entries in jamabandi for the year 1996-97 Ex.PW-1/A, with the only difference that the relevant entries in this regard in the remarks column find mention at Sr. Nos. 2 and 3.

It appears that the dispute between the parties arose when as per the entry at Sr. No. 6 of the remarks column of jamabandi for the year 1996-97, Ex.PW-1/A, one Smt. Krishna Devi, sold her 84/2688 shares, that is, 1/32 share to the extent of 1 biswa in the aforesaid land measuring 1-12-0 bighas to the Plaintiff Smt. Vidyawati. Incidently, Smt. Krishna Devi, vendor of the Plaintiff happens to be the wife of the said Shri Dot Ram. It further appears that earlier Shri Dot Ram had also sold the share of his wife in the aforesaid land measuring 1-12-0 bighas to the said Shri Vijay Chand, may be under the mistaken belief that he being husband of Smt. Krishna Devi was competent to alienate her share as well. It further appears that this mistake could not be detected by the revenue authorities either at the time of the sale made by Shri Dot Ram, in favour of one Shri Vaijay Chand and thereafter by the latter in favour of Defendants No. 1 and 2, S/Shri Lal Singh alias Lachhman Dass and Kishori Lal. However, the mistake on having been detected later on gave rise to exercise of revisionary powers by the concerned revenue authorities.

Substantial Question of law No. 1

Whether an adverse inference should have been drawn against the Plaintiff for non-production of sale deed by her in the Court.?

As already noticed, the Plaintiff has purchased the share of one Smt. Krishna Devi wife of Shri Dot Ram, in the aforesaid land measuring 1-12-0 bighas to the extent of 1 biswa and mutation No. 2378 was entered to this effect, as is evident from the entry at Sr. No. 6 in the remarks column of jamabandi for the year 1996-97, Ex.PW-1/A, issued on 29.5.2000, that is, just before institution of the suit. Though the Plaintiff has not produced the sale deed, yet no adverse inference can be drawn against her on this count, as has been canvassed on behalf of the Defendants for the reasons that on the one hand presumption of truth is attached to the entries in the record of rights, that is, jamabandi for the year 1996-97, Ex.PW-1/A, in which the sale made by the said Smt. Krishna Devi, in favour of the Plaintiff Smt. Vidyawati, is duly reflected and on the other the Defendants have failed to rebut such presumption by adducing evidence to the contrary. Further more the Plaintiff Smt. Vidyawati, who has appeared as PW-1 and PW-2, Shri Gulab Chand, are quite categorical in stating that the Plaintiff has purchased the suit land from the said Smt. Krishna Devi wife of Shri Dot Ram.

Substantial Questions of law No. 2 to 4.

Whether a cosharer can maintain a suit for mandatory injunction for demolition of an existing structure against another cosharer,specially when structure was raised without any objection from the predecessor-in-interest of such cosharer, without suing for actual possession by partition of the joint holding?

Whether a cosharer who is in possession of joint property in excess of his share can be dispossessed therefrom without actual partition by metes and bounds?

Whether the lower Appellate Court was justified in holding that the Appellants were in possession of land in excess of their share without any issue having been framed on that count?

It is proposed to take all these substantial questions of law for discussion and decision together, being inter connected, requiring common appreciation of facts and law.

Though as per the entries in the revenue record comprising of jamabandi for the year 1996-97, Ex.PW-1/A, the aforesaid land measuring 1-12-0 bighas is recorded in the joint ownership and possession of the parties and other co-sharers, yet both the Plaintiff and the Defendants are unanimous in their pleadings that the joint status of this land stood severed long back and since then the parties and other co-sharers are in possession of their respective shares. Meaning thereby that de facto partition had already taken place and de jure partition was a mere formality. Even otherwise, a co-sharer has no legal right to appropriate a particular portion of the joint land by raising construction therein for his benefit and to the exclusion and detriment of other co-sharers till the joint holding is not partitioned. Please see Parduman Singh and Anr. v. Narain Singh and Anr. 1991 (2) Sim. L.C. 215. In such situation and taking into consideration the evidence on record, the Plaintiff was well within her right to sue in the alternative for grant of a decree of mandatory injunction by demolition of the construction raised by the Defendants in the suit land during pendency of the suit. The reasons to arrive at this inference are set out here-in-after.

DW-1 Shri Kishori Lal, has stated during cross examination that the distance between the disputed latrines and the houses of the Defendants is about 50-60 feet. It is manifest from his further statement during cross examination that at the time of construction of their houses the Defendants had got the plans sanctioned from the competent authority. However, at that time neither there was any provision of latrines in those houses nor any such latrine existed. When he was making statement before the learned trial court on 4.3.2002, he has admitted that neither seats nor doors have been fixed in the disputed latrines.

Thus , it is apparent that as soon as the Defendants came to know about the purchase of the aforesaid one biswa of land (suit land) by the Plaintiff Smt. Vidyawati from the said Smt. Krishna Devi, they started construction of latrines therein which is situate at a distance of 50-60 feet from their houses in hot haste, with a view to deprive her of her rights of ownership and possession in respect thereof. As the suit was filed by the Plaintiff with due promptitude, it cannot be said by any stretch of imagination that she had not raised any objection with regard to construction of the latrines in the suit land.

In view of the above findings on the substantial questions of law, the appeal is dismissed being without any merit.