BALA RAM (SINCE DECEASED) Vs. DASSI DEVI

JUDGEMENT

(1.) The instant appeal is directed, against, the impugned verdict recorded, upon, Civil Appeal No.14 of 2003, by the learned First Appellate Court, whereby, it reversed the verdict pronounced by the learned trial Court, upon, Civil Suit No.57-1 of 2000, whereunder, the latter Court, had, dismissed the plaintiff's suit, for rendition of a decree, for, perpetual injunction, and, for mandatory injunction, and, rather the learned First Appellate Court hence partly allowed the plaintiff's appeal, vis-a-vis, rendition of a decree for perpetual injunction, (a) whereas, it declined relief qua rendition of a decree for mandatory injunction, vis-a-vis, the construction raised, upon, the contentious suit khasra numbers, till, the occurrence, of, a valid partition qua the undivided estate, hence inter se the contesting parties.

(2.) Briefly stated the facts of the case are that the plaintiff filed a suit for perpetual injunction restraining the defendants from raising any construction on the land comprised in Khata/Khtauni No. 116/326 min, Khasra No.864, measuring 0-07-17 hectare, situated in village Tayawal, PO Jeori, Teh. Rampur Bushahr, District Shimla, H.P., and, for mandatory injunction for demolition of the structure illegally raised on the suit land. It has been pleaded that the suit is shown in the ownership of the plaintiff and Chhergu and son and daughter of the plaintiff and the land is in joint ownership and possession of the co-sharers and that the land has been wrongly shown in possession of the chhergu co-sharer in the column of possession. It has been further pleaded that Sh. Chhergu co-sharer during the year 1999 sold half share of Khasra No.865/2/1 measuring 0-01-12 hectare to the defendants and mutation to this effect was attested and as per the averments in the sale deed and the mutation attested thereafter, the defendants were put in possession of this land. It has been further pleaded that as per the share of Chhergu the total land which comes to his share is 0-01-28 hectare out of this Chhergu has already sold land comprised in Khasra No.865/1, measuring 0-00-40 hectare to one Dila Ram and only 0- 00-88 hectare remained in is share and that the defendants were ought to raise construction on more than the share of Sh. Chhergu which he could sell and for that reason suit for perpetual injunction was filed by the plaintiff and her son Sohan Lal against the defendants. It has been further pleaded that during the pendency of the suit, defendant No.1 made false complaint against the plaintiff and her son with the police at Jhakri and the Dy. S.P. Jhakri along with the police visited the spot and directed the parties to get the land verified and when the Patwari visited the spot and measured the land, it was revealed that the defendants have raised the construction on khasra No. 864 instead of Khasra No.865/2/1 and the plaintiff then abandoned that suit. It has been further pleaded that the defendants despite the fact told by the Patwari did not agree to stop the construction on Khasra No.864 on which khasra they have no right and title and that the defendants are cosharer so far Khasra No.865/2 is concerned. It has been further pleaded that the land is in joint ownership of plaintiff and the other co-sharers and is not yet partitioned and the widow of Chhergu has filed a partition application before the A.C.1st Grad, Rampur which is pending. It has been further pleaded that as the land has been purchased jointly by the defendants comprised in Khasra No.865/2/1, therefore, all the three purchasers have been made party in the suit but factually the hero of the whole show is defendant No.1 and that the defendant No.1 illegally encroached upon part of Khasra No.864 and started raising the construction on the suit land knowing fully well that he and his sons, i.e. defendants No.2 and 3 have no right and title in the suit land. It has been further pleaded that the plaintiff and her son and daughter are entitled to half share in the suit land and factually the suit land is in possession of the plaintiff and her son and the entries in the column of possession have been wrongly made in favour of Chhergu. It has been further pleaded that the plaintiff shall suffer irreparable loss and injury which cannot be measured in terms of money in case the defendants are not restrained from raising any further construction on the suit land and the construction illegaly raised is not demolished. Hence the suit.

(3.) The defendants contested the suit and filed written statement, wherein, they have pleaded that he entries qua khasra No.864, situated in village Tayawal are not correct as per the spot position as the said khasra number along with khasra number 865 was allotted to Sh. Chhergu in family partition about 40 years back and since then late Sh. Chhergu has been coming in exclusive possession of Khasra No.864 and 865. It has been further pleaded that Khasra No.865/2/1 stands sold in favour of the defendants by late Sh. Chhergu but the spot on which construction has been raised by the defendants is the same which was shown and possession of which was delivered on the spot by late Sh. Chhergu to the defendants. It has been further pleaded that late Sh. Chhergu being exclusive owner in possession of Khasra No.864 and 865 was within his power and entitled to sell even the entire khasra number, where the plaintiff along with one Sh. Sohan and Shanta Devi are in possession of Khasra No.749, 862 and 863 and the said khasra numbers in their possession are much more than their share in the entire khata. It has been further pleaded that the spot was not visited by the Patwari and the land was not measured and in fact Patwari is not entitled to give demarcation of the land, and, therefore, in case any such demarcation given by the Patwari is illegal. It has been further pleaded that the plaintiff has no right, title and interest to stop the defendants from raising construction over Khasra Nos. 864 and 865 in any way. It has been further pleaded that the plaintiff and her sons are not in possession of Khasra No. 864 and 865 and did not remain in possession at any point of time. It has been further pleaded that partition took place about 40 years ago.