HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CR No.: 153 of 2005 With CR No.: 161 of 2005 Reserved on: 5.4.2010 Decided on: 7.4.2010 CR No.153 of 2005: Amin Chand and another ………petitioners. Versus Chet Ram and others ………Respondents. CR No.161 of 2005: Chet Ram ………petitioner. Versus Amin Chand and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioners: Mr.G.D. Verma, Senior Advocate, (in RFA No.153 of 2005) with Mr.B.C. Verma, Advocate. For the petitioner: Mr.K.R. Thakur, Advocate. (in RFA No.161 of 2005) For respondent No.1: (in RFA No.153 of 2005) Mr.K.R. Thakur, Advocate. For the respondents: Mr.G.D. Verma, Senior Advocate, (in RFA No.161 of 2005) with Mr.B.C. Verma, Advocate. 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - V.K. Ahuja, J: This judgment shall dispose of the civil revision petition No.153 of 2005 filed under Section 115 of the CPC by Amin Chand and another against the order passed by the learned District Judge (Forests), Shimla, dated 8.11.2005, upholding the order passed by the Civil Judge (Junior Division), Court No.III, Shimla, thereby allowing the application under Order 39 Rules 1 and 2 of the CPC. This order shall also dispose of another revision petition No.161 of 2005 filed by Chet Ram under Section 115 of the CPC, against the said order passed by the learned District Judge. Briefly stated the facts of the case are that respondent Chet Ram (hereinafter also referred to as the plaintiff) filed a suit for permanent prohibitory injunction as against the petitioners Amin Chand and Om Parkash (here-in-after also referred to as defendants No.1 & 2) and against respondents No.2 and 3, (hereinafter also referred to as defendants No.3 and 4). The suit was filed by the plaintiff for permanent prohibitory injunction restraining the defendants No.1 to 4 from changing the nature of the suit land in any manner by doing any digging operation or raising any construction. It was alleged by the plaintiff that the land measuring 0-58-69 hectares (6.19 bighas) has fallen to the shares of the plaintiff and defendants No.1 and 2, vide mutation No.1, dated 28.9.2003. - 3 - It was also alleged that the plaintiff has 395 shares out of 419 shares and defendants No.1 and 2 are only owners of 24 shares out of 419 shares. It was alleged that northern portion of the suit land abuts Shimla-Bilaspur-Mandi State Highway and is more valuable and the suit land is still joint between the plaintiff and defendants No.1 and 2, but defendants No.1 and 2, who are having a very meager share, are raising the construction on the land abutting the State Highway which is the best portion of the suit land to which they have no right, hence the suit filed by the plaintiff. Defendants pleaded that they are in physical possession of the land sold to them by the plaintiff which was purchased in the year 1995. It was also pleaded that the plaintiff had put defendants No.1 and 2 in physical possession of the land which adjoined the State Highway and possession was also given to them by fixing Khuntis. It was further pleaded that no objection was raised by the plaintiff or proforma defendants since the year 1995 when the defendants purchased the land and when they raised substantial construction, the plaintiff has come up by way of this suit, to which he has no right. The learned Civil Judge (Junior Division), vide his impugned order, dated 9.1.2004, restrained the defendants from raising construction and changing the nature of the suit land in any manner till the disposal of the suit or till partition, which may be earlier. On - 4 - appeal, the learned District Judge (Forests) vide his impugned order, dated 8.11.2005, upheld the order as against the defendants No.1 and 2 only and it was held that a finding should not have been recorded against defendants No.3 and 4. Being aggrieved, both the parties have filed separate revision petitions, as detailed above. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the petitioner/defendants No.1 and 2 were very clear that defendant No.1 purchased a specific portion of the land, got physical possession from the vendor i.e. the plaintiff Chet Ram and once he started the construction, the same vendor has filed a suit for injunction. It was submitted that the plaintiff had put defendant No.1 in physical possession and there was no rider in the sale deed that defendant No.1 will not be entitled to raise any construction till partition. It was also submitted that there was nothing in the sale deed as to which particular portion of the land, whether on the State Highway or on the other side, was being given in possession to defendant No.1 and once the physical possession was given to defendant No.1, he had every right to raise construction to the extent of his share. It was submitted that earlier, there were other co-owners also, who filed partition case in 2003 and as per mutation No.8, attested in that regard, the - 5 - share of other co-owners was separated but the share of the plaintiff and defendant No.1 remained joint and once a particular portion of the land had been sold to defendant No.1, he cannot be restrained from enjoying the fruit of the land which had been purchased by him from the plaintiff himself. It was further submitted that in equity, the plaintiff is not entitled to the relief of an injunction once he had himself sold a particular portion of the land and gave possession to defendant No.1. To substantiate his above submissions, the learned counsel for the petitioner had relied upon the following decisions. The decision in Lal Chand Bhardwaj versus Jagdish Kumar and another, Latest HLJ 2001 (HP) 777, shows that it was observed that the High Court has limited powers to interfere with the order passed by a subordinate court while exercising its revisional powers under Section 115 of the CPC. The observations made in para 7 are relevant and are being reproduced below: “Be it stated at the very outset that in exercise of its revisional jurisdiction under Section 115 of the Code, the High Court has limited powers to interfere with the order passed by a subordinate Court. Such interference is justified in a case where the subordinate Court has exercised a jurisdiction not vested in it or has failed to exercise jurisdiction vested in it or has exercised its jurisdiction illegally and with material irregularity. Interference may also be justified in a case where the order is perverse and if allowed to stand, will lead to failure of justice. Thus, in exercise of its powers under Section 115 of the Code, it is not competent to the High - 6 - Court to correct errors of fact, however gross or even errors of law, unless such errors have relation to the jurisdiction of the Court which passed the impugned order.” Reliance was also placed upon the decision in Tarsem Singh and others versus Parkash Kaur, AIR 2002 Punjab and Haryana 258, in which the observations made in para 8 are relevant and are being reproduced below: “There should be no quarrel so far this proposition of law is concerned that a co- owner must use the joint property in a husband like manner and his use of the joint property is not in any manner inconsistent with the similar right of other co-owners. In this case, however, the case of the petitioners is that the property sold to them by Narinder Singh, Gurmit Singh and Harjinider Singh sons of Ajit Singh was within the limits of their own share and further they had put the vendees from them in exclusive possession thereof. If that was so, vendees from them cannot be restrained from enjoying that property by raising construction thereon. So, this revision is allowed. Temporary injunction allowed to Smt.Parkash Kaur by the Courts below is vacated. It is, however, made clear that if the defendants raise any construction they will remove that construction without any demur if the portion purchased by them from Narinder Singh etc. vide sale deed dated 13.9.88 falls to the share of either Balwinder Kaur or Parkash Kaur.” The decision in Bachan Singh versus Swaran Singh, AIR 2001 Punjab and Haryana 112, shows that following observation were made in paras 18, 19 and 20: “A co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common - 7 - property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of co- owner out of possession. Secondly, mere making of construction or improvement of, in the common property does not amount to ouster. However if by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property. Further if the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest. In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co- owner.” On the other hand, the learned counsel for the respondent had relied upon the decision in Nagesh Kumar versus Kewal Krishan, AIR 2000 Himachal Pradesh 116. In that case, the plea by defendant was taken that he had purchased specific portion of suit land. It was held that the same was not tenable in the absence of sale deeds or copies thereof. Further, the plea that plaintiff’s father had also constructed house on suit land was held to be not tenable as the said construction was with the consent of other co-sharers. It was held that the defendant can be restrained from raising construction on the suit land. The decision in Lal Chand Bhardwaj (supra) was also relied upon by the learned counsel for the - 8 - respondent. Reliance was placed upon the observations made in para 16 in the said case, which are reproduced as under: “Injunction is a discretionary relief. For exercising such discretion the Court has to weigh and compare the amount of mischief alleged by the party claiming injunction with the mischief that may be inflicted by grant of restraint order on the opposite party. The relief of injunction being equitable in character, it cannot be said that equity has no role at all to play in considering the grant or refusal of injunction. The equitable considerations in the facts and circumstances of the case in hand weigh more in favour of the respondent than the petitioner. The ratio of Nagesh Kumar’s case (supra) is thus not attracted in the facts and circumstances of this case.” It is true that in case the land is jointly owned and possessed by the plaintiff and other co-sharers and has not been partitioned, the plaintiff would have been held entitled to the grant of injunction in his favour restraining the defendants from changing the nature of the suit land or raising any construction till partition. However, that can be so in case the land had been sold by some other person than the plaintiff himself who did not place any restriction in the sale deed on the powers of defendant No.1 to raise construction till partition or made a reference as to which particular portion of the land, whether abutting the State Highway or on the backside, has been sold to defendant No.1. The sale deed in question is dated 26.6.1995 executed by the plaintiff in favour of defendant No.1 and a perusal of the same shows that it has - 9 - been clearly mentioned that four biswas of land has been sold to defendant No.1 who shall be entitled to use it in any manner he likes and the possession has also been delivered to him. In case the plaintiff wanted to put some restrictions on the powers of defendant No.1 to raise construction or he had an idea that defendant No.1 may not encroach the whole land abutting the State Highway out of the total share of the plaintiff and other co-owners, he could have placed a restriction upon the powers of the defendant to raise construction over this particular portion of the land. It may be that the plaintiff represented to the defendant and showed him the land abutting the State Highway and once the defendant had purchased the land and the possession had been given to him of four biswas of land out of the total land and no restriction had been placed as to his powers to raise construction till partition. There is no specification as to whether the land abuts the State Highway or otherwise. In equity, the plaintiff cannot be held entitled to file the suit for an injunction and claim the relief of temporary injunction till the matter is settled by a civil court. In equity, the plaintiff is not entitled to temporary injunction in his favour till the question is decided by the civil court as to which of the parties was in possession or which particular portion of the land was sold to defendant No.1 and which land was given in - 10 - possession to defendant No.1 in pursuance of the sale deed effected by the plaintiff. All these questions are left open to be decided by the civil court but for the present, in equity, the plaintiff cannot be said to be entitled to the relief of an injunction in his favour. This is particularly so when the defendant has pleaded that he has raised construction over the suit land by spending Rs.1.00 lac, as pleaded in the written statement. The defendant shall not encroach or cover more land than what construction has been raised by him already, which he will be entitled to complete till the disposal of the suit. However, the construction being so raised by the defendant shall be subject to the rights of other co-sharers on partition and in case the defendant raises any construction beyond his share or that portion falls to the share of another co-sharer on partition, defendant No.1 will have to demolish this construction which shall be raised by him at his own risk. This will be subject to adjustment at the time of partition to which either of the parties are entitled to apply and get the appropriate relief. In view of the above discussion, the petition filed by the petitioner/defendant is allowed. There is no dispute in regard to the relief granted by the learned District Judge vacating the order as against defendants No.3 and 4, who shall be bound by the order that may be passed in favour or against defendants No.1 and 2. - 11 - The petition filed by the petitioners Amin Chand and another is accordingly allowed while the petition filed by petitioner Chet Ram is dismissed. The order passed by the learned District Judge is accordingly maintained. Copy of the order be sent to the learned trial Court alongwith the record of the case who shall try to dispose of the case at an early date. However, it is clarified that the observations made hereinabove are relevant for the disposal of the present revision petitions and shall not be construed as any opinion on the merits of the case being tried by the learned trial Court. April 7, 2010. (V.K. Ahuja), (TILAK) Judge.