BHAJNA NAND Vs. BHARAT RAM

JUDGEMENT

(1.) Instant petition filed under Article 227 of the Constitution of India, lays challenge to judgment dtd. 4/5/2022, passed by the learned District Judge Shimla, HP, in CMA No. 11-S/14 of 2022 (CNR No. HPSH100023452022, reversing the order dtd. 12/4/2022, passed by the learned Civil Judge-3, Shimla, District Shimla, H.P., in CMA Filing No. 391/2022 (CNR No. HPSH 120003942022; Registration No. 215/2022) in CS No. 30 of 2022, whereby learned trial court dismissed the application filed by the respondent-plaintiff (hereinafter referred to as "the plaintiff") for grant of temporary injunction, restraining the petitioner-defendant (hereinafter referred to as "the defendant"), from causing interference in any manner by way of raising construction, digging and excavating the suit land.

(2.) Precisely, the facts of the case as emerge from the record are that plaintiff filed a suit for permanent prohibitory injunction as well as mandatory injunction against the defendant, claiming himself to be owner of the suit land. Plaintiff also prayed for permanent prohibitory injunction restraining the defendant from raising any kind of construction, digging, encroaching upon the suit land bearing khasra No. 565 or any portion thereof and Khata Khatauni No. 57/55 to 60/58, total plots 105 measuring 5/43/67 hectares situate at Mauja Nalag, Tehsil and District Shimla (HP) till the same is partitioned by metes and bounds. Alongwith the aforesaid suit, plaintiff also filed application under Order 39 Rules 1 & 2 CPC, praying therein to grant temporary injunction, restraining the defendant from causing any interference in the suit land till the disposal of the main suit. In the application, it came to be averred by the plaintiff that plaintiff and defendant are co-owner in the suit land and till date, same has not been partitioned by metes and bounds. Plaintiff averred that he has filed application for partition of the suit land before the Assistant Collector, 2nd Grade Dhami, which is pending adjudication. It has been further averred that until and unless, suit land is partitioned by metes and bounds, no coowner has right to change the nature of suit land either by way of raising construction or by way of excavation or digging up the specific portion of the suit land. Plaintiff alleged in the application that defendant, without seeking any permission from him, started raising construction on the suit land comprising khasra No. 565, which is a valuable portion of the land abutting to the road and in case, he is permitted to go ahead with the construction, irreparable loss would be caused to him, which cannot be compensated in terms of cash or any kind. Besides above, plaintiff prayed that there is prima-facie case in his favour and balance of convenience also lies in his favour.

(3.) Aforesaid prayer made on behalf of the plaintiff came to be resisted by the defendant, who by way of reply to the application while admitting factum with regard to revenue entries qua the suit land claimed that though land is joint inter-se parties, but parties are in their settled possession as per the family arrangement, which took place between the parties 40 years ago and stands duly recorded in the revenue record. Defendant also claimed that parties are in exclusive possession of the particular khasra number, which fact is duly recorded in the revenue record on the basis of actual possession that too after due verificaiton. Besides above, defendant also submitted that plaintiff is in exclusive possession of khatauni No. 55 old (new khatauni No. 60) Kitas 49 measuring 2/51/7 hectares as per Jamabandi for the year 1997-98 and still so recorded in successive jamabandies for the years 2001-02, 2006-07, 2011-12 and 2016-17 and he is in exclusive possession of the suit land as per the family arrangement comprised in Khatauni No. 57 old (new khatauni No. 62) Kitas 51 measuring 2/83/39 and other remaining land in other khewats are still lying joint. Defendant also averred in the reply to the application that he has developed the land in his possession from time to time by spending huge money and at no point of time, any objection came to be raised qua the same by the plaintiff. Defendant also submitted before the court below that on one hand, plaintiff himself has raised the construction of his house in the suit land by way of family arrangement but on the other hand he with a view to harass him has unnecessarily filed the instant suit. Defendant also submitted in the reply that both the parties have raised construction over the land in their possession as per family arrangement and plaintiff has not only exchanged the some portion of the land, but also gifted the land to him as well as some other persons. He submitted that since he is owner of half share of the khata, he cannot be termed as encroacher on his own land. He claimed that plaintiff is in possession of khasra No. 522 measuring 0/4/87 hectares situate at the distance of 150 meters and khasra No. 384 situate on the same vicinity i.e. within radius of 20 meters from the suit land is also adjoining and abutting to the road side. Lastly, defendant submitted before the court below that he is not raising any construction beyond/ exceeding his share.