Yogeshwar Lal vs Sanjeev Kumar

Sureshwar Thakur, J.—The instant appeal, is, directed against the judgment and decree, rendered on 2nd November, 2002, in Civil Appeal No. 50 of 2002, by the learned District Judge, Chamba District Chamba, H.P., whereby, the learned First Appellate Court, while affirming the judgment and decree, rendered by the learned Sub Judge 1st Class, Dalhousie, Camp at Chamba, dismissed the appeal, preferred before it by the defendants/appellants. The appellants/defendants, aggrieved by the judgment and decree, rendered by the learned District Judge, Chamba, has preferred the instant Regular Second Appeal before this Court.

The facts, necessary for adjudication of the present appeal, are that the instant suit was instituted by the plaintiffs/respondents claiming decree of permanent prohibitory injunction against defendants No. 1 to 6 restraining them from raising construction over the suit land comprised in Khasra No. 8421, measuring 131.5 square yards and Khasra Nos. 8422 and 8426, measuring 121.3 square yards, situated in Mohal Chamba Town-I, Pargana Panjla, Tehsil & District Chamba (herein-after referred to as the ''suit land''). The suit property is averred to be partitioned and the defendants/appellants had no right to raise construction over Khasra Nos. 8421, 8422 and 8426 without the suit land having been partitioned by the metes and bounds. Nonetheless, the plaintiffs/respondents avers in their plaint that the defendants/appellants started digging the land comprised in Khasra Nos. 8421, 8422 and 8426 in the month of May, 1998 for the purpose of raising construction, though, the defendants/appellants were requested to desist from raising any construction, till, the partition of the suit land is not effected but the defendants/appellants refused to accede to the request of the plaintiffs/respondents. Accordingly, sequelling the institution of a suit before the learned trial Court.

The suit was resisted and contested by defendants No. 1 to 6 by filing written statement, wherein preliminary objections that the plaintiffs having no cause of action, for, filing a suit for permanent prohibitory injunction regarding Khasra No. 8421, as, the same is exclusively owned and possessed by the defendants/appellants along with the heirs of late Shri Ram Murti, besides, contending that the suit is bad for non-joinder of necessary parties. On merits, it was contended that Late Shri Dina Nath, father of the plaintiff, was the real brother-in-law of Madan Gopal and Ram Murti and the land was jointly purchased long before the settlement, besides, it was contended that Late Shri Dina Nath admitted the claim of the defendants/appellants and transferred half of the total area with specific Khasra number, to, late Shri Madan Gopal and Ram Murti as donee and thereafter the defendants/appellants are owner in possession of Khasra No. 8421. The defendants/appellants contested the claim of the plaintiffs/respondents over Khasra No. 8421 being joint. However, the jointness of Khasra Nos. 8422 and 8426 has been admitted by the defendants/appellants. Besides, it is also contended that the defendants started leveling work over Khasra No. 8421 and the plaintiffs/respondents have no right over the suit land. Rest of the contents of the plaint have been denied and a prayer for dismissal of the suit has been made.

The plaintiffs/respondents filed replication to the written statement of the defendants/appellants, wherein, they denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint.

On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:-

Whether the plaintiff is owner in possession of the suit land? OPP.

If Issue No. 1 is decided in affirmative, whether the plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for? OPP

Whether the plaintiff has no cause of action? OPD

Whether the suit of the plaintiff is bad for non-joinder of necessary parties, as alleged? OPD

Relief.

On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/respondents and in appeal, preferred before the learned first Appellate Court, against the judgment and decree of the learned trial Court, by the defendants/appellants, the learned first Appellate Court dismissed the appeal.

Now the defendants/appellants have instituted the instant Regular Second Appeal before this Court, assailing the findings, recorded by the learned first Appellate Court, in, its impugned judgment and decree. When the appeal came up for admission on 24.2.2003, this Court, admitted the appeal, instituted by the defendants/appellants, against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial question of law:-

Whether the Judgment and decree of the trial Court, as affirmed by the first Appellate Court, is based on misreading of the revenue record in terms of Ext. P-1, Ext. P-3 and Ext. D-1?

Substantial question of Law No. 1.

The factum of interference, at, the instance of defendants/appellants over the suit land comprised, in, Khasra No. 8421, is apparent as well as manifestly palpable, from the admission, comprised in the statement of DWs, qua theirs having received an ad-interim injunction from the learned trial Court, restraining them from not proceeding to raise construction, as undertaken by them on the suit land and theirs in obedience thereto having stopped the construction.

The plaintiffs/respondents would be entitled for a decree of permanent prohibitory injunction only, if credible evidence both documentary as well as oral, displaying the fact of the suit land being jointly owned and possessed by the parties at contest or it being recorded, in, the co-ownership of the parties at lis, hence, co-owners while holding unity of title and community of possession in the joint suit property, as such, barring each of the co-owners, till, the suit property is partitioned by metes and bounds, to utilize any portion thereof, for exclusive use.

The further incident of the rule of co-ownership, as would be applicable in case it is established by advertence to evidence both oral as well as documentary on record, that, the suit land, is, recorded in the possession of or any portion thereof is exclusively held by each of the parties at contest, is of such portions of the suit land even if possessed exclusively by any of the parties at lis, would, while applying the principle of unity of title or community of possession inhering in co-owners, constitute possession of the other co-owners, as well. Both the learned trial Court as well as the first appellate Court, on perusal of the Jamabandis, qua the suit land, comprised in Ext. P-1 and Ext. P-3 and theirs displaying the factum of the suit property being recorded in the joint ownership of the parties at contest, had tenably clinched the conclusion that given the fact of the suit property being recorded in the joint ownership and possession of the parties, at lis before this Court, in the absence of evidence, cogent and potent, to dislodge the presumption of truth attached to the revenue entries with the disclosure, aforesaid, comprised in the adduction of a deed, or, instrument of partition, having been executed inter-se the parties, at lis, in pursuance whereof, mutation, conferring exclusive ownership upon each of the co-owners on the Khasra Numbers, which fell to their exclusive ownership and possession was attested. Besides, such instrument of partition and mutations attested in pursuance thereto, portraying that the Khasra Numbers ascribed to the ownership and exclusive possession, of, the defendants/appellants, would have been the best evidence, to, clinch a conclusion in favour of the defendants/appellants, that, the presumption of truth attached to the revenue entries, portraying the fact of jointness of suit land, inter-se the parties, at contest, is dislodged and in sequel thereof, the decree of permanent prohibitory injunction, as has been accorded in favour of the plaintiffs/respondents by both the Courts below, is rendered frail and infirm. However, for non-adduction of the aforesaid best evidence, to dislodge the presumption of truth, attached to the revenue entries, rather, sprouts an inference that the suit land, is, established to be jointly owned by the parties at contest. In aftermath, on applicability of the principle of unity of title and community of possession inhering in the rule of joint tenancy comes to be attracted to the suit property and as a natural concomitant thereto, it has to be firmly concluded that the possession, if any, of any portion of the suit land, as claimed by the defendants/appellants, is to be not construable to be exclusively utilizable by them, especially when recorded in the joint ownership of the parties at lis, rather is possession for and on behalf of the other co-owners. It does not confer and bestow any vestige of right upon the defendants/appellants to under its garb raise construction over any portion of the undivided/joint property so as, to, unsettle the equities inter-se the parties, at contest, who are recorded co-owners or authorize them to in its garb to raise construction and claim an untenable leverage on, its, strength and score at the time when the mode of partition is settled inter-se the parties, at contest, as a prelude to the drawing up of an instrument of partition qua the suit property.

The learned counsel for the appellants/defendants contends that Ext. P-3 proclaims the fact of Khasra No. 8421 being recorded in the exclusive possession of the defendants/appellants and that, hence, the decree, as accorded in favour of the plaintiffs/respondents, was not grantable. The above contention is rendered frail in the face of entries qua Khasra No. 8421 forthrightly divulging the fact of the parties at contest being recorded to be jointly owning the suit property comprised in Khasra No. 8421 rendering inconsequential the fact of the plaintiffs/respondents being recorded in the column of possession to be in exclusive possession of Khasra No. 8421, which possession in the face of the parties at contest having been recorded its co-owners, renders the possession of defendants/appellants over/upon it to be construable to be possession held by him for the other co-owners, as well, while applying the principle of unity of title and community of possession inherent in the principle of co-ownership.

The result of the above discussion is that the appeal, preferred by the defendants/appellants, is dismissed and the judgments, rendered by the learned Courts below, are affirmed and the substantial question of law is answered in favour of the plaintiffs/respondents and against the appellants/defendants and the suit of the plaintiffs/respondents is decreed. However, there will be no order as to costs.