HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.316 of 2001 Decided on: 8.4.2011 Jonda Ram ……Appellant. Versus Piar Chand and another ………Respondents Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Anil Chauhan, Advocate. For respondent No.1: Mr.Suneet Goel, Advocate. V.K. Ahuja, J.(Oral): This is a regular second appeal filed by the appellant under Section 100 of the CPC against the judgment and decree passed by the learned Additional District Judge, Mandi, dated 31.3.2001, affirming the judgment and decree passed by the learned Sub Judge, Joginder Nagar, decreeing the suit for injunction filed by respondent No.1. 2. Briefly stated, the facts of the case are that respondent No.1, hereinafter also referred to as the plaintiff, filed a suit for injunction as against the appellant, who was impleaded as defendant No.1 and as against respondent No.2, who was impleaded as defendant No.2. It was alleged in the plaint that the plaintiff and defendants, who are real brothers, had joint landed and other moveable and immoveable property in the village. The joint property includes a machine consisting of Motor 15 horse power, rice roller, cotton machine, oil expeller, thresher etc. and the same has been housed in the building constructed on a piece of land bearing Khasra No.664. The - 2 - plaintiff and defendants separated from each other in the month of November, 1990 by effecting a family partition amongst themselves. The partition was effected orally and it was reduced to writing on 13.11.1990. It was also alleged that as per the family partition/arrangement, the suit property was also divided and it was agreed upon that the plaintiff and the defendants shall run machines for 10 days separately in one month and all the earnings and profits during this period will belong to the person running the machine. It was pleaded that when the turn of the plaintiff came to run the machine, the defendant started interfering in the running of the machine, hence the suit for injunction filed the plaintiff. 3. The suit was only contested by defendant No.1. He took up the plea that the property is not jointly owned and possessed by the parties since the suit land was purchased alone by defendant No.1, who deposited the amount in the bank account of the vendor Suraj Singh. It was also alleged that the plaintiff and defendant No.2 had agreed to deposit their shares of the cost of land, which was not deposited by them and hence the plaintiff is not entitled to run the machine which has also been purchased by defendant No.1. 4. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the plaintiff and defendants are joint owners of moveable and immoveable property, as alleged? OPP - 3 - 2. Whether the family arrangement/partition has taken place between the plaintiff and defendants in the month of November 1990, as alleged in para No.2 of the plaint? OPP 3. Whether the plaintiff was prevented by the defendants from operating the machine as alleged in para No.3 of the plaint? OPP 4. Whether the plaintiff is entitled for the alternative relief of injunction, as alleged? OPP 5. Whether the defendant No.1 had purchased the suit property form one Shri Suraj Singh except diesel engine and wheat thresher, as alleged in para No.1 of the written statement? If so, its effect? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the plaintiff has no cause of action to file the suit? OPD 8. Relief.” 5. Parties led their evidence and the learned trial Court vide its impugned judgment and decree, decreed the suit of the plaintiff in full. Those findings were affirmed by the learned Additional District Judge. 6. The present appeal was admitted on the following substantial question of law: “Whether both the Courts below have misread and misappreciated the evidence on record more specifically the document Ext.D-1 to come to the conclusion that the suit property is jointly owned by the parties who are real brothers and the appellant-defendant does not have any independent and exclusive right over it, as alleged by him?” - 4 - 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The submissions made by the learned counsel for the appellant were that the suit land was not jointly purchased by all the brothers, but it was purchased by defendant No.1 alone by his funds. It was also submitted that the machine had also been purchased by defendant No.1 and defendant No.1 had also paid the cost towards machinery and building and accordingly, there is no right of the plaintiff to run the machine as pleaded by him. 9. On appraisal of the record of the case, it is very much clear that the suit land was purchased by the parties vide sale deed Ext.P-1 and it is not in dispute that the sale deed was effected by the vendor in the name of all the three brothers jointly. There is no reference to the machine having been also purchased alongwith land vide sale deed Ext.P-1. In the pleadings made by the defendant, he had not specifically pleaded as to when the machine in question was purchased and from whom and when it was installed in the land so purchased by all the three brothers jointly. In case the transaction in question was a sham transaction or that the payment had been made exclusively by defendant no.1, he could have filed a suit for declaration or put up a counter claim before the learned trial Court that the transaction in question was not valid and he be declared the owner of the suit land in full. He did not plead so nor claimed any relief of - 5 - declaration and accordingly in the absence of any such plea, this question cannot be decided that the transaction in question was not valid or that defendant No.1 was the exclusive owner of the land. In regard to the fact that he had led evidence to show that the amount in question was deposited by him exclusively, the deposit in the bank in the name of the vendor has to be made by one of the vendees and all the three vendees are not required to be present at the time of deposit or the deposit by one of them does not prove that he was the exclusive owner of the suit land so purchased. 10. In regard to the machinery, I have mentioned above that there is no specific pleading as to when it was purchased, from whom it was purchased and as to whether it was exclusively purchased by defendant No.1. The fact remains that there is a machine installed in the house of the parties and both the courts below had referred to the evidence in this regard and had come to a definite conclusion that the machine is installed in the house and all the three brothers are the joint owners in possession of the suit land and the machine installed therein. There is no need of any reappraisal of the evidence once both the courts below had come to this conclusion. The factum of partition is not denied and keeping in view the conclusion arrived at by the courts below, it has to be held that both the courts below had come to this conclusion that it was agreed to in between the parties that all the persons will run the machine for 10 days in a month. Moreover, even in - 6 - case the partition has not been effected and the property is joint, all the three brothers have a right and, therefore, the plaintiff is entitled to run the machine installed in the joint land for 10 days in a month. 11. Accordingly, it follows from the above discussion that once both the courts below had come to a definite finding and there is no perversity in the said finding arrived at by the courts below, the evidence does not need reappraisal or there is no other conclusion that can be drawn by this Court. Accordingly, the findings of the learned trial Court granting the relief of injunction are liable to be upheld, which were affirmed by the learned Additional District Judge also. However, it is clarified, to avoid any dispute, that in a month, for the first 10 days, defendant No.1 shall be entitled to run the machine, for the next 10 days the plaintiff will be entitled to run the machine and for the remaining 10 days defendant No.2 will be entitled to run the machine. This clarification is being issued to avoid any dispute since in the decree, in a suit for injunction, the learned trial Court or the learned appellate Court had not clarified this point. 12. In view of the above discussion, there is no merit in the appeal and as such the same is dismissed accordingly. However, the parties are left to bear their own costs. April 8, 2011. (V.K. Ahuja), (tilak) Judge.