Shri Surat Singh vs Smt. Krishni Devi and Others

Surjit Singh, J.—This appeal by the plaintiff is directed against the judgment dated 10.3.2000 of learned District Judge, Sirmaur District at Nahan, whereby accepting the appeal of the respondents-defendants against the judgment and decree dated 1.9.1999 of the trial Court, i.e. Court of Sub Judge Ist Class, Nahan, suit has been dismissed.

Relevant facts may be summed-up thus. Surat Singh, appellant, hereinafter called ''plaintiff'' filed a suit for permanent prohibitory injunction restraining the respondents-defendants from interfering in his land bearing Khasra No. 144 by raising construction thereon and also for possession of any portion of Khasra No. 144 over which the respondents-defendants might raise construction during the pendency of the suit. It was stated that plaintiff was joint owner of khasra No. 144, 145 and some other khasra numbers, with the defendant No. 1 and proforma defendants and that there existed an old house of defendants on khasra No. 145, which they had started reconstructing and in that process they were planning to make encroachment upon khasra No. 144, which was exclusively possessed by the plaintiff.

Suit was contested by the defendants-respondents. They pleaded that they were raising the construction on khasra No. 145, which was in their exclusive ownership and possession. They also pleaded that they had nothing to do with the rest of property, including khasra No. 144.

Following issues were framed on the pleadings of the parties by the trial Court:

(1) Whether the plaintiff is owner in possession of the suit land as alleged? OPP

(2) Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for? OPP

(3) Whether in the alternative the plaintiff is entitled for possession as prayed for? OPP

(4) Whether the defendants are owners in possession of khasra No. 145 as alleged? OPD

(5) Whether the defendants are entitled for special costs? OPD

(6) Whether the plaintiff has no cause of action? OPD

(7) Relief

Learned trial Court concluded that plaintiff was exclusive owner of khasra No. 144 and defendants-respondents were exclusive owner of khasra No. 145. Learned trial Court further concluded that defendants-respondents had made encroachment upon two biswas area, out of khasra No. 144, as depicted in Tatima Ext.PW4/A. Consequently, the trial Court decreed the suit and passed a decree for possession of two biswas area, out of khasra No. 144, which the defendants were held to have encroached and also passed a decree of permanent prohibitory injunction, restraining the defendantsrespondents from interfering in khasra No. 144 by raising any construction thereon.

Appeal was filed by the defendants-respondents. Learned District Judge has accepted the appeal with the finding and observation that parties are joint owner of khasra No. 144 and, therefore, decree of permanent prohibitory injunction cannot be issued against a co-owner and also a decree for possession can also not be passed in favour of a co-owner until partition taken place. Consequently, judgment and decree of the trial Court was set-aside and the suit was dismissed.

Plaintiff has come in appeal against the judgment and decree of the trial Court. Appeal was admitted on the following substantial question of law:

Whether the impugned judgment and decree is unsustainable for want of taking into account the entire oral and documentary evidence by the lower appellate Court.

I have heard the learned Counsel for the parties and gone through the record.

No doubt, the plaintiff very categorically pleaded that the suit property, which included khasra Nos. 144, 145 and few more khasra numbers, was jointly owned by the parties but the defendants in the written statement pleaded that they had no concern with the suit property, except khasra No. 145, which they claimed to be exclusively owned and possessed by them. During the course of trial, one of the defendants, namely Dhanbir Singh, appeared as DW1 and he very categorically stated that while the defendants were owners of khasra No. 145, the other number, i.e. khasra No. 144, was owned and possessed by the plaintiff exclusively. Plaintiff also made a similar statement while appearing as PW1. Defendant Dhanbir, while appearing as DW1, also stated that in case any construction was found to be on khasra No. 144, he was prepared to remove it. In the face of aforesaid categorical statements by the parties that khasra No. 144 belonged to the plaintiff to the exclusion of the defendants and khasra No. 145 was exclusively owned and possessed by the defendants, learned first Appellate Court was not justified in accepting the appeal with the observation that the parties are joint owners and a decree for possession as also for permanent prohibitory injunction cannot be issued against a joint owner.

Learned first Appellate Court did not make reference to the evidence led by the parties with regard to the alleged encroachment on a portion of khasra No. 144. As a matter of fact, learned first Appellate Court did not go into this aspect of the matter at all, though from the pleadings of the parties and the evidence, which they adduced, it appeared that the only dispute between the parties was whether any encroachment had been made by the defendants upon any portion of khasra No. 144, which is exclusively owned and possessed by the plaintiff, even as per admission by the defendants.

In view of the above state position, appeal is allowed. Judgment and decree of learned first Appellate Court are set-aside and the case is remanded to the learned District Judge with the direction to decide the same afresh, in the light of what has been observed and stated hereinabove.

Parties are directed to appear before the first Appellate Court i.e. the Court of Learned District Judge, Sirmaur District at Nahan on 10.5.2010.