IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO 273 of 2009. Judgment Reserved on 2.4.2009. Date of decision 9.4.2009. Dr. Jagan Nath Barowalia …Petitioner. Versus Smt. Nirmala Devi …Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the petitioner Mr. Ramakant Sharma, Advocate. For the respondent Mr. G.C.Gupta, Sr. Advocate, with Mr. Ravi Kumar, Advocate. Dev Darshan Sud, J. This is the plaintiff’s petition against the order of the learned Additional District Judge, Shimla, passed in an appeal preferred by the respondent – defendant against the order of the learned trial Court prohibiting and restraining the defendant from interfering in the possession of the applicant/ plaintiff over the 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - suit land and from raising any construction on khasra No. 1153/625 in violation of the Municipal Byelaws. The petitioner who is the plaintiff filed a suit for declaration that he has acquired title by way of adverse possession of 26.50 square meters of land comprised in khata No. 30, khatauni No. 41, khasra No. 1153/625 as shown in the plan marked and filed with the suit. The plaintiff has pleaded his open possession on the land by constructing thereon in the form of a boundary wall, steps leading to his building, water fountain and planting a garden of ornamental trees etc. Plaintiff claims that this land has been constructed upon in 1995 and till the date of filing of the suit, no objection was raised by anybody including the defendant despite the fact that the defendant was aware about the construction being carried out by the plaintiff. The construction is pleaded to have been made openly to the knowledge of all. The plaintiff pleads that the defendant being owner of the adjoining piece of land was - 3 - constructing in violation of the Municipal Byelaws. The suit is resisted by the defendant on a number of grounds including the fact that she was the absolute owner in possession of 190.68 square meters of land in khasra No. 1153/625. It was also pleaded that there is no proper demarcation to support the case of the petitioner. A specific denial is made that the plaintiff is in possession of the land as delineated in the plan. The defendant submits that the construction as well as the boundary wall is on the land which is shown to be in possession of the plaintiff according to the plan filed. An application under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying for an ad interim injunction restraining the defendant from raising any construction as also from interfering in the possession of the plaintiff on the land on which stair case etc. has been constructed was filed in the suit by the plaintiff. Both the suit and application was resisted by the respondent. - 4 - The learned trial Court held that the plaintiff had been able to establish a prima facie case. In conclusion, the learned Court holds that since both parties are claiming their possession over the suit land on which construction has been raised by the plaintiff, it should be protected during the continuation of the suit and the suit land would abide by the result of the suit. An injunction was issued prohibiting and restraining the defendant from interfering over the construction on the suit land ( measuring 26.50 square meters) and also from raising any construction on the other portion of the land except in accordance with the Municipal Byelaws. Being aggrieved from this order, the respondent defendant preferred an appeal to the Court of the learned Additional District Judge, Shimla, which vide the impugned order while confirming the injunction with respect to prohibition of not raising construction except in accordance with Municipal Byelaws, vacated the injunction with respect to 26.50 square meters as depicted in the plan filed with the suit, on the - 5 - ground that the petitioner being a tres passer could not pray for such an injunction. Both the parties have been heard at length. Learned counsel representing the parties have argued with vehemence on the legality of the order. Learned counsel for the petitioner has urged that the land being in possession of the petitioner and such land having been constructed upon, the plaintiff – petitioner was entitled to protection of possession at least during the pendency of the suit. He submits that the construction by the plaintiff has been made in accordance with the Municipal Byelaws and according to the sanctioned plan. Learned counsel for the respondent submits that the Courts below were in error in granting the interim order to the petitioner as prayed for. Learned counsels have referred in extenso to the revenue record, purported reports of demarcation placed on record and documents placed on the record both before the trial Court and the appellate Court to prima facie establish the respective ownership/ possession of their clients. - 6 - Before proceeding with the case further, learned senior counsel appearing for the respondent submits that petition under Article 227 of the Constitution of India is not maintainable. He relies upon the decision of the Supreme Court in Shamshad Ahmad and others v. Tilak Raj Bajaj (deceased) through LRs and others, (2008) 9 SCC 1 to submit that under Article 227, though the powers of the High Court are very wide, however, these are supervisory in nature and the Court cannot act as a Court of Appeal. It can neither review nor re-appreciate or reweigh the evidence upon which the determination has been made by the Courts below. He refers to para 38 of the judgment, which states: “ 38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the - 7 - evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law.” Learned counsel for the petitioner submits that the Supreme Court has time and again emphasized that this Court can interfere under Article 227 when it finds that injustice is writ large and there can be no fixed parameters for exercise of such powers. In particular, he has placed reliance on the judgment of the Supreme Court in B.K.Muniraju v. State of Karnataka and others, (2008) 4 SCC 451, holding: “ 25. As observed in Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675, the exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in - 8 - a straitjacket formula or rigid rules. To put it clear though the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.” He submits that this is only a reiteration of the judicial principles long laid down by the Supreme Court. Reference has been made to the decision of the Supreme Court in Puran Ram v. Bhaguram and another , (2008) 4 SCC 102 wherein the Court held that the High Court should not interfere with an order of the trial Court when it has been passed on sound consideration of law and facts. The Court held: “18. We may now take into consideration as to whether the High Court, in the exercise of its power under Article 227 of the Constitution, was justified in rejecting the application for amendment of the plaint, which, in the discretion of the trial court, was allowed. We are of the view that the High Court ought not to have interfered with the order of - 9 - the trial Court when the order of the trial court was passed on sound consideration of law and facts and when it cannot be said that the order of the trial court was either without jurisdiction or perverse or arbitrary.” Two other decisions in Kishore Kumar Khaitan and another v. Praveen Kumar Singh , (2006) 3 SCC 312 and Atma Ram v. Shakuntala Rani , (2005) 7 SCC 211 on the same point have been referred to. There is no dispute to the proposition that the High Court does not act as a Court of Appeal under Article 227. But at the same time, its jurisdiction is not shackled in a straitjacket where the facts exfacie reveal that the Court has acted in a manner which does not promote harmony but would bring into being a state of affairs which would be a constant source of strife and lead the parties to multifarious litigation. That is not to say that the Court under Article 227 of the Constitution will enforce a state of affairs otherwise not countenanced by law. It is in this background that the entire case need be considered. - 10 - I must observe that the proceedings have been conducted in the manner as if the final suit is being decided and disposed of. Dealing with the second aspect first i.e. raising of construction except in accordance with the Municipal Byelaws, there obviously cannot be any dispute with the orders passed by the trial Court as affirmed by the appellate Court that any construction raised would be in accordance with the Municipal Byelaws; it is nothing but a reiteration of the recognized principle that statutory rules and byelaws governing construction have to be respected, obeyed, followed and applied with all rigour. Even without passing this injunction order, the Municipal Corporation would be at liberty to take action against any party whom it finds constructing without authority of law and contrary to the Byelaws and statutory rules governing construction. There can be no dispute to this proposition. Both the Courts have only affirmed this statutory position which cannot be interfered with. This part of the order of the Courts below does not require any interference. - 11 - On the other aspect that the plaintiff cannot be granted any injunction for the portion of 26.50 square meters on which construction has been raised by him, two facts may be noticed. First is the existence of construction in the nature of stairs, a small garden and fountain etc. on 26.50 square meters of land. The defendant is admittedly not claiming this portion of the construction as having been made by her and as her own. This construction in the nature of stairs etc. is subservient to the building of the petitioner and is in his possession. The location of this constructed area is disputed. The plaintiff alleges that this construction is on the area claimed by him through a decree of declaration and consequential relief of permanent prohibitory injunction while the case of the defendant is one of total denial. The learned appellate Court should have been alive to the situation that unless user of this constructed portion and its possession at present was claimed by the defendant, the principle invoked that the plaintiff claiming adverse possession would be treated at par as a tres-passer and could not - 12 - claim any relief should not have been invoked. Secondly, the material part of the pleading of the plaintiff that this construction was made openly in 1995 in accordance with the sanctioned plan has not been considered at all. I need not go into that principle of law which holds that no person shall be dispossessed from any property in his possession except by due process of law. (See M.Kallappa Setty v. M.V.Lakshminarayana Rao, AIR 1972 SC 2299, Karthiyayani Amma v. Govindan, AIR 1980 Kerala 224, Krishna Ram Mahale v. Mrs. Shubha Venkat Rao, JT 1989 (3) SC 489 and State of H.P. v. Kishan Dass and others , 1998 (1) Shim. L.C. (302)). The Court should have been alive to this situation and the principle of law under Order 39 Rules 1 and 2 is to preserve the corpus of the suit property and not to allow it to be wasted or interfered with during the pendency of the suit. It is but obvious that merely passing an order for maintaining status quo, that is the plaintiff shall not be dispossessed from the stair case, garden and fountain which he has claimed to be a part of his building and which is not claimed to be subservient to the estate/ land of the - 13 - defendant, will not in any manner cause any injustice to the respondent nor finally decide its ownership. Learned counsel for the parties have made detailed reference to the documents filed on record. I need not add that these documents which are disputed by either side require to be proved in evidence. I am not inclined to assess their evidentiary value at this stage nor decide disputed questions in this petition where only the legality of the order is being considered. I find that this is a case in which if an order of maintenance of status quo as it exists today is not passed, it will lead to multiplicity of litigation between the parties. The corpus of the suit needs to be protected. In the facts and circumstances of the case, this petition is disposed of with the following directions: i) The order passed by the Courts below restraining the defendant- respondent from raising any construction, except in accordance with the Municipal Byelaws does not call for any interference; - 14 - ii) The other part of the order of the learned appellate Court refusing injunction on 26.50 square meters of land as claimed cannot be sustained. It is directed that during the pendency of the suit, the parties shall maintain status quo as it exists today, that is to say, the plaintiff shall not be dispossessed by the defendant from the constructed portion on which stair case, garden and fountain serving the building of the plaintiff exists, except in accordance with law. iii) Parties to appear before the learned trial Court on 24.4.2009. A direction is issued to the learned trial Court to dispose of the suit expeditiously. iv) The Registry is directed to send back the records of both the Courts below. v) Any observations made in this order will not be taken as finally determining the rights of the parties. April 9, 2009 (PC). (Dev Darshan Sud), J.