H.P. WAKF BOARD Vs. SUDARSHAN KUMAR

JUDGEMENT

(1.) The present appeal is directed against the judgment and decree dtd. 16/2/2004 passed by learned District Judge Kangra at Dharamshala, vide which, the appeal filed by the appellant (plaintiff before the learned Trial Court) was dismissed. (Parties shall hereinafter referred to in the same manner as they were arrayed before the learned Trial Court).

(2.) Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a Civil Suit before the learned Trial Court for seeking a decree of a permanent prohibitory injunction for restraining the defendant from changing the nature of the land comprised in Khata No. 146 Khatauni No. 355 Khasra No. 2260 measuring 105-88 square meters situated in Up Mohal Dharamshala, Mouza and Tehsil Dharamshala, District Kangra as per the Jamabandi for the year 1990-91 (hereinafter referred to as the suit land). A relief of mandatory injunction was also sought against the defendant directing her to demolish the construction, if any, raised by her during the pendency of the suit. It was pleaded that the plaintiff is the owner of the suit land. The plaintiff leased out part of the suit land to the defendant on 1/8/1977 on the condition that the defendant was not to change the nature of the suit land by raising construction of a permanent structure without obtaining prior permission of the plaintiff. The defendant started collecting construction materials to raise the superstructure on the suit land without seeking permission. She employed labour to raise construction. She was requested not to do so but in vain. Hence, the suit was filed to seek the relief mentioned above.

(3.) The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, the suit being barred by limitation, the suit having not been properly valued for the purpose of Court fees and jurisdiction, the plaintiff being estopped to file the present suit by its acts, conduct and acquiescence. The contents of the plaint were denied on merits. However, it was not disputed that the plaintiff is the owner and the defendant is the lessee. It was asserted that the construction was raised with the consent and knowledge of the plaintiff by spending a huge amount of ? 5 lakh. The residential house has been in existence for more than 25 years and no new construction was raised. The suit was not maintainable and the plaintiff had no cause of action to file the suit. Hence, it was prayed that the suit be dismissed.