IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 531 of 2001 Reserved on : 5th May, 2008 Date of Decision: 13th May, 2008 Nirmala Katoch and another Appellants Versus Karor Chand Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellants: Mr.Bhupender Gupta, Sr. Advocate, with Mr. Neeraj Gupta, Advocate. For the respondent: Mr.Ashwani Kumar Sharma, Advocate. Sanjay Karol, J. The present appeal arises out of the concurrent findings of fact recorded by the Court below. Civil Suit No. 218/95 filed by the plaintiff Shri Karor Chand (respondent herein) against Smt. Nirmala Katoch and Shri Kalyan Chand, defendants (appellants herein) was decreed in terms of judgment and decree dated 31.1.1998 passed by Sub Judge, Sundernagar, District Mandi, HP. The defendants’ Civil Appeal No. 24 of 1998 (2000) was dismissed by the learned District Judge, Mandi, HP in terms of its judgment and decree dated 17.9.2001. Thus the plaintiffs’ suit for permanent prohibitory and mandatory injunction stood partly decreed as under:- Whether the reporters of Local Papers are allowed to see the Judgment? 2 “defendants are restrained permanently from raising construction over the suit land till partition takes place”. The appeal was admitted on the following substantial questions of law:- “1. Whether the lower appellate court has wrongly rejected the application for leading additional evidence filed by the appellants to bring on record the subsequent events coming into existence during the pendency of the appeal, which were absolutely essential for determining the real controversy between the parties? Are not the reasoning given by the Lower Appellate court, illegal, erroneous and perverse by holding that the documents sought to be produced are not material for the just decision of the case? 2. Whether both the courts below have acted with illegality in ignoring from consideration the principles to be kept in mind while deciding the rights of the co-owners in the joint property? When the rights of the plaintiffs were safeguarded on account of vacant land available where the equities could be adjusted have not the courts below exceeded their jurisdiction in granting injunction? 3. Whether both the courts below have ignored the basic ingredients for grant of injunction particularly the principles of irreparable loss and injury and the balance of convenience which have vitiated the judgments and decrees of both the courts below?” The plaintiff filed a suit for permanent prohibitory and mandatory injunction claiming co-ownership with defendant No.1 of the land comprised in Khewat No. 69, Khatauni No. 192, Khasra No. 2968, measuring 1036.0 sqm., situated in Muhal Sundernagar, District Mandi, HP (hereinafter referred to suit land). The suit land being joint and unpartitioned was abutting Sundernagar- 3 Maloh road having high market value. Without any consent of the plaintiff the defendants started raising new construction and changing the nature of the land. The relevant paragraphs of the plaint for adjudication of the dispute are reproduced as under:- “3. That the defendants without any consent and permission of the plaintiff started raising new construction over the above said suit land occupying the valuable portion of the land leaving no approach to the plot of the plaintiff, when allotted in partition. 4. That the plaintiff requested the defendants to stop the construction and get the land partitioned, but they are adamant and are raising construction and also in this way changing the nature of the land in dispute, without any right, title and interest. 5. That the cause of action accrued to the plaintiff on 5.12.1995 when the defendants started collecting material for the construction of building and right to sue accrued on 12.12.1995 when the defendants totally refused to admit the claim of the plaintiff. 6. That the parties reside, the suit land is situated and the cause of action accrued in Tehsil Sundernagar and therefore this learned Court has got the jurisdiction to entertain and try the present suit. 7. That the valuation of the suit for the purpose of Court fee and jurisdiction for the relief of permanent prohibitory injunction is fixed at Rs.140/- and for the purpose of mandatory injunction is at Rs.140/- upon which a court fee of rs.28/- is affixed on the plaint.” While admitting the plaintiff to be co-sharer to the extent of 104 sq.m., the defendants in the written statement averred that land to the extent of the plaintiff’s share is lying vacant and no portion thereof stands encroached. The access to the land is through the National Highway No. 22 in the front and another road leading to Village Haripur (Bharoh) on the other side of the plot. The defendants constructed old Khokhas in the year 1971 and thereafter in the year 1978 new structure in lieu thereof was raised by them. They are now 4 replacing the old structure and the construction is being raised only on that part of the plot where the old structure existed. The plaintiff never raised any objection to the construction at any point in time and since the structure raised by the defendants in the year 1978 was also Kacha and rendered unfit for human habitation as the roof and walls were in dilapidated condition, therefore, the structure was being raised to make it fit for human habitation. In effect, it is pleaded that the defendants are rebuilding the structure, which already stood constructed long ago by the defendants. The defendants have also pleaded that prior to the filing of the suit, pillars and lintel stood constructed by them. On the pleadings of the parties, the following issues were framed:- “1. Whether suit land is being possessed by the parties jointly, as alleged? OPP 2. Whether construction is being raised by the defendants on valuable portion of the suit land without the consent of the plaintiff in an illegal manner, as alleged? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff is estopped by his act and conduct to file the suit? OPD 5. Whether the plaintiff has no cause of action to file the suit, as alleged? OPD 6. Whether construction is being made by defendants on old structure as alleged, if so its effect? OPD In support of his case, the plaintiff examined himself as PW-1 and defendants examined eight witnesses. Revenue entries (Ext.D-1 to Ext.D-14) amplify that the parties are co-owners and in joint possession to the extent of following share:- Plaintiff 10% Defendants 90% 5 From the sworn testimony of the plaintiff, it stands admitted and proved that on the entire 19 meters of front portion of the plot Khokhas/temporary structures had been put up by the defendants. It is also admitted that Khokhas were in existence since 1970-71 and thereafter from 1978 the defendants let out the same to Madan Lal, Dharam Singh, Prem Singh and Ramesh. This was, however, done with the consent of the plaintiff. The defendants have proved their pleaded case that on the entire front of 19 mts. the construction has been raised and there is a separate passage through a road to the remaining vacant portion of the land behind the said construction. During the course of hearing, it has been confirmed by the learned counsel for the parties that the construction raised by the defendant is only on 340 sq. mts. of land. On the remaining portion of approximately 700 sq. mts. there is no construction whatsoever and the remaining portion is lying vacant for which there is a separate access through a road. There is no doubt that front portion, adjoining the National Highway, would be having higher value, but, however, the plaintiff’s share in the entire land is only to the extent of 10%. The partition proceedings inter se between the parties are pending before the appropriate authorities. The trial Court dismissed the plaintiff’s prayer of mandatory injunction (demolition of the construction already raised) and no appeal challenging the same was filed. The plaintiff has not claimed any damages or has sought the relief of rendition of accounts for the rent received from the tenants. It is not the case of the plaintiff either that he has contributed for the construction of the structure. The plaintiff is also not claiming any right over the construction raised by the defendants on the joint land. 6 The plaintiff has not been able to show as to what irreparable loss or injury would be caused to him or in what manner his rights are seriously prejudiced necessitating the grant of any discretionary relief in his favour. In Sant Ram Nagina Ram vs. Daya Ram Nagina Ram and others, AIR 1961 Punjab 528, it has been held as under:- “78. The weight of the authorities and the principles which have been discussed above, give rise to the following propositions – (1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession. (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner openly asserts his own title and denies that of the other. (5) Passage of time does not extinguish the right of the co- owner who has been out of possession of the joint property except in the event of ouster or abandonment. (6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co- owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition. 7 (8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. (9) Where a partition of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered. 79. This is a case which attracts the application of proposition No.4. From what has been stated above, the question referred by the learned Single Judge will be answered as follows: ‘If in spite of protests by one co-owner, another co-owner raises a building on a portion of joint land, not exceeding his own share therein, the aggrieved co-owner cannot obtain a decree for demolition of that building without proving special damage or substantial injury to him unless the other co-owner who has raised the building has done so by asserting an exclusive title in himself and by denying that of the other co-owners.’” Thus keeping in view the fact that the plaintiff’s ownership is not disputed, no special circumstances has been pleaded, proved or established necessitating the grant of equitable relief of injunction. The construction raised by the defendants has been lying unproductively/unutilized since 1985, when the suit filed by the plaintiff. It is an admitted case of the parties that except for 340 sq. mts. of area, the defendants have neither raised nor intend to raise any construction subsequently. The plaintiff’s share in the entire land is only to the extent of 104 sq. mts., which allegedly was given by the defendants to the plaintiff being younger in age. The plaintiff and defendant No.2 are real brothers. 8 Be that as may be, the plaintiff’s share is meager and his interest stands substantially and adequately protected. The partition proceedings are going on and the equities between the parties shall be considered and adjusted therein. The defendants are not claiming exclusive ownership in the land. The defendants are also not claiming plaintiff’s ouster from the land underneath the constructed portion. Therefore, the constructed portion shall be taken into account at the time of partition. From para 3 of the plaint, as reproduced hereinabove, it appears that even the plaintiff acquiesced to the defendants raising the construction subject to the partition and adjustment of equities. The plaintiff has accepted the defendants to be in exclusive possession of constructed portion by acquiescence or mutual arrangement. It is not the case of the plaintiff that he is residing on the remaining portion of the land or has put it for personal use for himself or that the defendants are obstructing the use of the same. The defendants are not changing the character of the property, as the shops let out to the tenants were already in existence from the year 1971 onwards. The defendants are only reconstructing the same by putting up a concrete structure at their own costs. In Sant Ram Nagina Ram (supra), it has been further held as under:- “26. …Injunctive process is not available to the aggrieved party de cursu, as a matter of course, and as a matter of right. The grant of a relief is within the judicial discretion of the Court. An injunctive relief will not be available to a plaintiff who has been standing by without objecting to the acquiescence or laches stand in the way of the grant of such a relief. It is after carefully weighing all the equities between the parties that the Courts exercise their discretion in granting or denying a mandatory injunction.” “27. …In such circumstances, the Courts are inclined to exercise their discretionary powers in the plaintiff’s interest. They will, 9 however, desist where the injury complained of is comparatively trivial. Though Courts are reluctant to grant injunctions where the person injured will obtain a small benefit and the junction will operate oppressively on the defendant, such a consideration will not weigh with the Courts if the injury caused by the defendant to is unwarranted and unprovoked.” In the present case, substantial portion of the construction has been erected. While granting an injunction the Court has to exercise judicial discretion and weigh the amount of mischief done or threat to the plaintiff and compare with that which injunction would inflict upon the defendants. No substantial injury has been shown to have been caused to the plaintiff. It is not that construction raised is contrary to Municipal bye-laws or in any manner is posing threat to the plaintiff’s right, which in any case stand adequately protected by the fact that property shall be considered in its entirety and after balancing the equities the partition proceedings shall take place. The plaintiff’s conduct in the present case disentitles him to the equitable relief of injunction. The Courts below have misapplied the provisions of law and, therefore, the judgments and decrees are perverse, erroneous and need to be reversed. The balance of convenience lies in favour of the defendants and it has not been shown as to what irreparable loss or injury would be caused to the plaintiff. The Courts below have totally lost sight of this fact while decreeing the plaintiff’s suit. The defendants are not excluding the plaintiff from the ownership of the whole of the front portion of 19 mts. constructed by them, therefore, the Court below has seriously erred in holding that no co-sharer has right over the whole of the land to the detriment of the other co-sharer till the partition is effected by metes and bounds, particularly, when plaintiff himself has acquiesced for the construction of the structure from the year 1971 onwards. 10 Learned counsel for the respondent has also argued that the substantial questions of law as framed do not arise for consideration at all. The guiding principles for determining substantial questions of law have been laid down by the Apex court from time to time. The Apex Court in P.Chandrasekharan and others vs. S.Kanakarajan and others, (2007) 5 SCC 669, has held as under:- “The High Court shall also be entitled to opine that a substantial question of law arises for its consideration when material and relevant facts have been ignored and legal principles have not been applied in appreciating the evidence….” “Even in a case where evidence is misread, the High Court would have power to interfere….” In Moses Wilson & ors. vs. Kastubra and others, AIR 2008 SC 379, the Court has held as under: “…It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & ors, (AIR 1999 SC 2213), the Court has held as under:- “In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence” 11 The material on record has been considered keeping in view the aforesaid principles of law laid down by the Apex Court. Learned counsel for the respondent has referred to a decision in Om Parkash and others vs. Chhaju Ram, AIR 1992 P&H 219, to contend that a co-sharer in exclusive possession of the suit land cannot be permitted to raise construction unless it is regularly partitioned by metes and bounds. The decision is clearly distinguishable on facts. The plaintiff therein had challenged the order of mutation passed in collusion with the revenue authorities, by playing fraud and totally denying the plaintiff’s ownership and possession, which is not the case in hand. During the pendency of the first appeal, the appellants moved an application under Order 41 Rule 27, CPC seeking to bring on record the orders passed by the authorities in the partition proceedings. The same was not allowed. During the course of hearing, learned counsel for the respondent submitted that after passing of the orders sought to be placed on record there has been subsequent events and the said order could not be said to have attained finality. This position is not disputed by the learned counsel for the appellants. In this view of the matter, substantial question of law No.1 is not required to be answered. The substantial questions of law are answered accordingly. For all the aforesaid reasons, the appeal is allowed and the plaintiff’s suit is dismissed. No costs. 13th May, 2008 (Sanjay Karol), (C) Judge.