Smt. Sahibu Devi vs Harbans Singh and Another

Surinder Singh, J.—This judgment will dispose of both the above titled appeals, having arisen from a common judgment of the learned District Judge, Shimla, passed in Civil Appeal No. 13-S/13 of 1997 filed by the Defendants and Civil Appeal No. 18-S/13 of 1997 filed by the Plaintiff.

Both the above Second Appeals filed by the Plaintiff/Appellant u/s 100 of the CPC were admitted on the following, similar substantial questions law:

1) Whether the person who purchases undivided share in a joint khata is entitled to interfere in the settled possession of co-sharers already in possession without seeking partition?

2) Whether a co-sharer in physical settled possession of a portion of land and house existing on portion of joint holding is entitled to seek injunction against a new purchaser of undivided share in the said joint holding?

3) Whether the first appellate Court has made out a new case which is neither pleaded nor proved by the Respondents?

4) Whether the first appellate Court''s finding of exclusive possession and ownership of house are without any cogent, reliable evidence before the learned Court?

5) Whether the document Ex.PC has been completely misread and miss appreciated by the first appellate Court?

6) Whether oral as well as documentary evidence has not been appreciated in its right perspective

In brief, the facts giving rise to the present case can be stated thus. Appellant Sahibu Devi (hereinafter to be referred as "the Plaintiff), filed suit for seeking the relief of permanent injunction restraining the Respondents (now to be called "the Defendants") from causing any interference over a portion of khasra No. 1298/498 to the extent of 7 biswas identified as khasra No. 1298/498/1, as per Tatima enclosed with the plaint, to be referred as "the suit land".

The Plaintiff averred in her plaint that she was a joint owner of the land bearing khasra No. 1298/498, situate in Mauza Badhai, Pargna Jajhot, Tehsil and District Shimla, but the suit land was in her exclusive possession. She also pleaded that over a portion of the suit land she had constructed a single storeyed house over 2 biswas of land about 12 years before the institution of the suit. It was having two rooms which were rented out to one Shri D.R. Sharma, the then S.H.O., Police Station, Dhalli. In addition to the aforesaid house she had also constructed a shed over one biswa, adjacent to the above house abutting Kalka-Shimla National Highway, which was rented out to one Shri Anokhia, who was running a meat-shop therein and remaining area in the suit land was vacant.

Plaintiff alleged that on 9th October, 1991 Defendants tried to take forcible possession of vacant land, on making enquiry, it came to the notice of the Plaintiff that the Defendants had purchased the undivided share from one of the co-sharers of the whole Khata, on the basis of which they tried to take possession of the vacant portion of the suit land. Thus, she filed the suit, but later Defendants are alleged to have raised a tin-roofed shed measuring 10''x6'' over the vacant portion of the suit land, then the Plaintiff sought amendment and additionally claimed the relief of mandatory injunction to remove the temporary shed.

The Defendants offered a strong resistance to the suit of the Plaintiff and filed their written statement. They alleged harassment and pleaded that khasra No. 1298/498 is measuring 23 big has 15 biswas. The Plaintiff''s share comes to 1.9 big has, which she had already sold, thus there was no question of her being in possession on any portion of the suit land. They also questioned the maintainability of the suit vis-�-vis, raised the objection of estoppels and further pleaded that the joint Khata was already partitioned amongst the co-owners privately and they had purchased 6 biswas of land from one Madhu Rani, one of the daughters of the Plaintiff, who was in exclusive possession of the said area. They also claimed the ownership of the house wherein Shri D.R. Sharma was tenant under Madhu Rani and later under them, but not under the Plaintiff, as alleged, and prayed for the dismissal of the suit.

The Plaintiff filed replication wherein she denied preliminary objections raised by the Defendants. She denied that the house, which is claimed by the Defendants, fell within the area which is allegedly purchased by them from Madhu Rani. According to her, said 6 biswas of land covered under the sale deed was gifted by the Plaintiff in the year 1975 in favour of her daughter Madhu Rani, when she was a child of only six years. Therefore, putting into possession by her on a particular portion in the joint Khata did not arise at all.

On the pleadings of the parties, the learned trial Court framed the following issues:

1) Whether the Plaintiff is in physical possession of 7 biswas of land out of khasra No. 1298/498 as co-owner, if so its effect? OPP.

2) Whether the Plaintiff is entitled to the relief of injunction, if issue No. 1 is proved in affirmative as prayed for? OPP.

3) Whether the Defendants were put in physical possession of 6 biswas of land out of khasra No. 1298/498 and 1299/498 by the vendor at the time of sale, if so its effect? OPD.

4) Whether the suit in the present form is not maintainable as alleged? OPD.

5) Whether the Plaintiff is stopped to file the present suit as alleged? OPD.

6) Whether the suit land has been partitioned between the co-sharers, if so its effect? OPD.

6-A) Whether the Plaintiff is entitled for mandatory injunction? OPP.

7) Relief.

After the complete trial and upon hearing the learned Counsel for the parties, the learned trial Court returned the findings that the suit property was not partitioned, the Plaintiff was in exclusive possession of the suit land as a co-sharer and further that the Defendants had no right to cause interference in her possession without seeking partition. It was also held that said Shri D.R. Sharma was inducted as a tenant in the said house by the Plaintiff and the Defendants are in possession of the area wherein they had constructed a Dhara (temporary shed) and they were held entitled to remain in possession thereof until partition takes place. Thus the suit of the Plaintiff was partly decreed and the learned trial Court passed a decree of permanent injunction against the Defendants restraining them from causing any interference in the possession of the Plaintiff over the suit land except the site of Dhara, but the relief of mandatory injunction was declined.

The Defendants felt aggrieved with the impugned judgment and decree passed by the learned trial Court holding that the Plaintiff was in exclusive possession of the suit land as aforesaid and also that the house in which Shri D.R. Sharma was a tenant and it belonged to the Plaintiff, thus filed an appeal before the learned District Judge, which was registered as Civil Appeal No. 13-S/13 of 1997. The Plaintiff was also dissatisfied by the findings of the learned trial Court that the Defendants were entitled to remain in occupation of the tin-roofed shed in the suit land as aforesaid, thus challenged the judgment and decree by filing separate appeal, which was registered as Civil Appeal No. 18-S/13 of 1997.

The learned District Judge re-examined the evidence in the light of the submissions made by the parties and came to the conclusion that 6 biswas of land out of the suit land has been in possession of the Defendants and that the house in occupation of Shri D.R. Sharma as a tenant stood on the suit land. It was also held that the remaining 1 biswa including the site of shed in occupation of Anokhia, as tenant, has been in exclusive possession of the Plaintiff. Consequently, the appeal filed by the Defendants was accepted and the judgment and decree passed by the learned trial Court was set aside and the suit of the Plaintiff was dismissed.

Feeling aggrieved by the judgment and decree passed by the learned District Judge, the Plaintiff filed the above titled Second Appeals.

Shri Ashok Sood, learned Counsel for the Plaintiff vehemently argued that the land in question fell in joint Khata and the Plaintiff was in its settled possession over which a house was existing wherein Shri D.R. Sharma was a tenant. The first appellate Court gave a new dimension to the facts which were not even pleaded by the parties and thus based its findings on conjectures and surmises and the learned District Judge wrongly interpreted the document Ext.PC (PX), (agreement of settlement of terms on which the premises were rented out) which has caused a material prejudice to the Plaintiff.

Contra, Shri K.D. Sood, learned Counsel for the Defendants supported the impugned judgment of the learned District Judge being based on the law and facts.

I have given my thoughtful consideration to the rival contentions of the parties and have examined the record to answer the above points.

Admittedly, the suit land is comprised in khasra No. 1298/498, total measuring 23 big has 15 biswas and the dispute is of 7 biswas, which is depicted by Khasra No. 1298/498/1. It emerges from the evidence on record that father of the Plaintiff, was a co-owner in the Khata. After his death, his estate to the extent of 6.4 big has was inherited by the Plaintiff and her three sisters in equal shares. The Plaintiff had four daughters, namely, Shanta, Madhu, Indu and Shakuntla. On 7th November, 1975, she had bequeathed her entire share (1 bigha 11 biswas) to them in equal shares. Thereafter one of her sisters Durgi Devi gifted her entire share measuring 1 bigha 11 biswas in the Khata by gift deed Ext.PA, dated 25th November, 1982 (at page 117 of the trial Court''s file) which was tendered in evidence by the Plaintiff herself during evidence being correct copy of the original produced by her.

Thus it becomes absolutely clear that from November, 1975 till November, 1982 Plaintiff was neither owner nor in possession of any portion of the suit land because she had already bequeathed her share in favour of her four daughters including Madhu Rani. Although she stated that the house wherein Shri D.R. Sharma was a tenant, was constructed by her in the year 1980, but as per the police report lodged by her against the Defendants in daily diary Ext.PE dated 28th June, 1993, produced by the Plaintiff herself in her evidence, shatters her entire case wherein she stated that she constructed said two rooms in the year 1980, in which Shri D.R. Sharma, was a tenant and Defendants had tried to take its possession. When she was not owner of the suit land, then how she could have constructed the house in a joint Khata in 1980. Plaintiff although stated that immediately on the construction of the aforesaid house the electricity connection was provided in the house in question. But Ext.PW-4/A application for providing electricity connection in two rooms at Ghora Chowki near Ram Niwas was moved by Paras Ram her husband and is dated 1st May, 1981. In the said application there is no mention as to who was the owner of the said house at that time. It is also important to note that it has come in evidence that the Plaintiff was residing in the vicinity where the suit Khasra is situated. Admittedly, Paras Ram was not the owner of the suit land and the said application could not be connected with the house in question, rather it stands proved on record that it was Madhu Rani his daughter who was one of the co-owners and in settled possession in the said Khata in the year 1981 to which she could have sold. It is clearly established that the house in question was not constructed by the Plaintiff.

Further there is another piece of evidence on which the Plaintiff relies. To prove that said Shri D.R. Sharma, was the tenant of the Plaintiff, she placed on record the agreement Ext.PX (PC) alleged to have executed between them. She stated as PW-1 that she had been executing the agreement of lease for a fixed term and on the expiry of the previous a fresh document of lease was executed. The first appellate Court took note of the fact and rightly so that the stamp paper of the agreement of settlement of terms Ext.PX (PC) on which the premises were rented out, was sold to the Plaintiff on 30th October, 1991, as is evident from reverse side of the stamp-paper, but the date beneath the signatures of Shri D.R. Sharma, witness and the thumb impression of the Plaintiff is given as "1st April, 1991", it throws a substantial doubt on the correctness of this agreement. Further, PW-7 Shri D.R. Sharma, when examined also did not corroborate the version of the Plaintiff that every time he had been executing the lease deed, as stated by the Plaintiff in her statement. He categorically stated that he had only executed one document of lease, i.e., Ext.PX (PC), the correctness of which is doubtful. Thus the very fact of tenancy as alleged in favour of said Shri D.R. Sharma by her also becomes doubtful.

Further Plaintiff as PW-1 in her cross-examination admitted that one of her daughters Indu had also sold her share to one Kuldip over which he was constructing a house. Similarly, her other daughter Shanta had also sold her share. She also admitted that in the share which was bequeathed by her in favour of her daughters many houses have come up which were constructed by different persons to whom the land was sold by them. She also stated that she had sold 4-4 biswas of land to Dev Dutt Sharma, Rajinder Prasad and Sushma, who had also constructed their houses thereon. Admittedly, Madhu Rani had sold 6 biswas of land in favour of the Defendants. When the Plaintiff had sold the land to different persons in the same Khata and the same was not partitioned and the vendees have constructed their houses thereon, then for Madhu Rani, who was daughter of the Plaintiff, should not have any objection that she could not sell the land of her possession to the Defendants in the same Khata in the similar way to the extent of her share, as her other daughters had also sold and delivered the possession.

The dispute is with respect to 7 biswas of land. It is proved that Madhu Rani, co-sharer, was ostensible owner in settled possession to the extent of 6 biswas of land and after the execution of the sale deed in favour of the Defendants, they are in possession of 6 biswas of land. Thus, the Defendants are owners in possession of 6 biswas and could have retained its possession even without seeking partition but remaining 1 biswa including the existing shed was rightly held to be in the exclusive possession of the Plaintiff in which Anokhia is a tenant. Therefore, in my opinion, the findings of the first appellate Court are based upon proper appreciation of evidence. The Defendants have stepped into the shoes of Madhu Rani. Although, the suit land fell in the joint khata, but she was in the settled possession of the said land. Six biswas of land was sold by her to the Defendants, thus they came in possession thereof. Therefore, for the above reasons, I also do not find that the document Ext.PC (PX) was misread and misinterpreted by the first appellate Court as alleged. The reasoning given by it, is borne out from the evidence on record. I also do not find that the first appellate Court has mis-appreciated the evidence. The substantial questions referred to above are accordingly answered. Consequently, both the appeals fail and are accordingly dismissed.

No other points urged.

Parties are left to bear their own costs.