Whether reporters of the Local Papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. R. S. A. No. 460 of 2002. Decided on: October 10, 2011. Kirtan Singh. …… Appellant. Versus Smt.Lila Devi …….Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? For the appellant : Mr. Sanjeev Kuthiala, Advocate. For the respondent : Mr. G.R. Palsara Advocate. Surinder Singh, J (oral). The appellant hereinafter to be referred as ‘the plaintiff’ has filed the present regular second appeal, having felt aggrieved and dissatisfied by the judgment and decree passed by the learned District Judge in Civil Appeal No.90 of 2000 decided on 24.7.2002, whereby the decree passed by the learned trial Court was modified. 2. The present regular second appeal was admitted for hearing on the following substantial question of law:- “1. Whether the learned Courts below have misread and mis-appreciated the oral and documentary evidence especially the - 2 - statements of PWs1, 2, 3, 6, Exts.PW5/A, PW3/A, PW7/A, Mark A and DW-1? 2. Whether the learned Courts below could have denied the relief of mandatory injunction and possession to the plaintiff without balancing equity and making direction that the defendant compensate the plaintiff by way of mesne profits and also to furnish tangible security till the finalization of the partition? 3. Whether the learned Courts below have misread and mis-appreciated the provision of Section 39 of the law of Specific Relief as also the provision of doctrine, acquiescence or equitable estoppel, more so when it was proved that the defendant was in possession as a trespasser or at the most as a person in possession without any bonafide title or claim of title and as such whether the plaintiff was entitled for the restoration of the land or whether the defendant could be given the option of compensating the plaintiff or the removal of the material from the land or building and failure of giving such option have resulted in prejudicing the plaintiff- appellant?” 3. In short, the facts giving rise to the present appeal can be stated thus. The plaintiff claims himself to be owner in possession of the land comprised in Khasra No.736/361 and 734/360 to the extent of 0-2-14 Bigha out of the total land, having been purchased by him from - 3 - PW2 Shri Janki Dass Dogra and in exclusive possession of Khasra No.736/361 and a portion of Khasra No.734/360. It has also been the case of the plaintiff that he had given a breast wall and raised three pillars over the disputed land. The respondent hereinafter, to be refereed as the ‘the defendant’ had also purchased some land out of the total land as described in para-1 of the plaint, but alleged that defendant has no concern with the land, which was purchased by the plaintiff. It is alleged that on 1.1.1995, defendant started digging work on the land purchased by the Plaintiff. He took objection to it and warned her to desist from her illegal activities, but in his absence, in the year 1995, the defendant tried to put the slab on Khasra No. 736/361. The matter was reported to police and a compromise was arrived at inter se the parties. The defendant was directed not to raise any further construction, but later plaintiff came to know that the defendant had also put lintel on the pillars and retaining wall without any permission illegally, thus, sought the relief of mandatory injunction and to hand over the vacant possession to him and also prayed for a decree of permanent injunction. - 4 - 4. The defendant resisted and contested the suit. In her written statement, she denied the ownership of the plaintiff as alleged. The preliminary objections with respect to the cause of action and maintainability of the suit were raised and on merits, pleaded that the land in question is joint and in the possession of the parties and other co- sharers. It was also averred that there was some private arrangement with respect to the possession inter se the co-owners and they raised the construction over their respective shares. Defendant has also completed the construction of her house much before the plaintiff purchased the land in the said Khata. The breast wall and the pillars were raised by the predecessor-in-interest of the plaintiff. She only started construction of her house in the year 1990 at the same place and completed it upto ground floor in the year 1992 and since the year 1994, she has been living in the house aforesaid. The plaintiff purchased the land in the year 1993 i.e. after completion of the construction by her and prayed for dismissal of the suit. 5. On the pleadings of the parties, learned trial Court framed the following issues:- - 5 - “1. Whether the plaintiff is co-owner to the extent of 0- 2-14 bighas of the land as described in para No.1 of the plaint, as alleged? …OPP. 2. Whether the plaintiff is in exclusive possession of the land of Khasra No.736/361 and 734/360 as alleged? …OPP. 3. Whether the defendant has forcibly occupied the Khasra Nos.736/361 and 734/360 by putting the slab over the retaining wall and pillars of the plaintiff as alleged? …OPP. 4. If issue Nos. 1,2 and 3 are proved, whether the plaintiff is entitled for mandatory injunction, as prayed? …OPP. 5. Whether the suit is not maintainable? …OPD. 6. Whether the suit is bad for non-joinder and mis- joinder of necessary parties? …OPD. 7. Whether the suit is not properly valued, if so, what is the correct valuation? …OPD. 8. Relief. 6. Parties led their evidence. After hearing the parties, learned trial Court held the plaintiff co-owner of the suit land and noticed that the land comprised in Khasra No.736/361 and a portion of Khasra No.734/360 to the extent of 0-2-14 bigha was joint having purchased by the plaintiff, as per the jamabandi for the year 1992-93 Exts.PA and PZ. Plaintiff also stands recorded in joint ownership and possession of the aforesaid land alongwith - 6 - other co-sharers. The land in question was purchased by the plaintiff from one Shri Janki Dass Dogra (PW2). He is stated to have raised breast wall and three pillars over the land aforesaid, which was alleged to have been purchased in his name by one Patwari, whose name has not been disclosed. Learned trial Court took into consideration the statement of plaintiff with respect to the alleged encroachment by the defendant vis-à-vis statement of PW3 Amar Nath who happens to be the relative of PW2 Shri Janki Dass Dogra. But, learned trial Court on appreciating the oral evidence, could not exclusively came to the conclusion about the possession of the plaintiff qua the suit land, thus, it put its reliance on the documentary evidence, consisting of the copy of Tatima Ext.PW3/A and after going through it, it came to the conclusion from the note appended thereto that it is clear that there were three pillars over Khasra No.736/361and apart from it also find that some digging work was found on Khasra No.734/360/1. Since the plaintiff had purchased Khasra No.736/360 and a portion of Khasra No.734/360, hence, taking into account of the aforesaid document, the inference was drawn that the retaining wall was raised on Khasra No.736/361 and a - 7 - portion of Khasra No.734/360 and some digging work was on Khasra No.734/360, thus on such inference, the statement of the defendant was discarded, also on the ground that no demarcation report etc. was produced by the defendant in order to specifically show that the retaining wall and the pillars aforesaid were in fact over the land owned and possessed by her. Thus, Tatima Ext.PW3/A stood not rebutted. On these findings, learned trial Court decided issues No.1 to 7 against the defendant and in favour of the plaintiff, consequently, suit was decreed for vacant possession of the land and consequential relief. 7. The judgment and decree passed by the learned trial Court was challenged before the first Appellate Court and on re-examination of the evidence on record, the First Appellate Court came to the conclusion that the statement of the plaintiff is itself was sufficient to demolish his case, which clearly establishes that the suit land is joint inter-se the parties and no separate possession was recorded and the statement of the plaintiff was not enough to prove that he had purchased the pillars and retaining wall and over these pillars, slab was allegedly put by the defendant. In other - 8 - words, plaintiff failed to prove exclusive possession of the suit land, over which the pillars and slab had been put. Further, statements of PWs2 and 3 were also held to be not sufficient to prove the exclusive possession of the plaintiff and the report Ext.PW5/A which was allegedly lodged in Police Station was also Mark-A compromise are of no help as these were not legally proved, whereas on the other hand defendant (DW-1) had substantiated that she had already purchased the land which consisted the breast wall and pillars laid thereon by her predecessor-in- interest and even she completed the construction in the year 1993 prior to the purchase of the plaintiff and she was residing in the said house from the year 1994. Her witness DW2 Sidhu Ram and DW-3 Sher Singh had lent strength to her version, who did the masonry work for her. 8. On the critical examination of the aforesaid evidence, learned first appellate Court concluded that the suit property was un-partitioned inter se the parties to the lis and other co-sharers and no individual co-sharer could be said to have been having any specific right over any specific Khasra number. The plaintiff did not produce and prove the sale deed qua the suit land showing that the breast wall and the pillars were also purchased by - 9 - him, whereas on the portion aforesaid, once it is held that he was out of possession even he also failed to prove the exclusive possession prior to the filing of the suit, thus the suit for mandatory injunction was held to be not maintainable and the findings of the learned trial Court qua issues No.2 to 4 were held to be wrong and contrary to the evidence on record. On the aforesaid findings, learned First Appellate Court rightly granted the relief of injunction restraining the defendant from making any further construction till partition and the relief for mandatory injunction/ vacant possession in alternative was not allowed. 9. Shri Sanjeev Kuthiala, learned counsel for the appellant vehemently argued that the learned First Appellate Court has mis-interpreted the Tatimas and the Jamabandies aforesaid, thus arrived at a wrong conclusion. 10. Contra, Shri G.R. Palsara, learned counsel for the respondent has supported the impugned judgment and decree passed by the learned First Appellate Court. 11. I have heard the learned counsel for the parties and have gone through the evidence on record. - 10 - 12. It is a fact which stands established from the revenue record (Exts.PA and PZ) i.e. Jamabandies for the year 1992-93 that the parties to the lis are co-sharers in the Khata. The oral evidence on record clearly establishes that the defendant Lila Devi had purchased the land in this Khata even prior to the plaintiff. Further, PW2 Janki Dass Dogra stated that it was not he who had purchased the land, which was sold to plaintiff, but it was a benami transaction as one Patwari had purchased the land in his name, which was further sold to the plaintiff in the year 1993. PW3 Amar Nath, Patwari has admitted that he is a relative of PW2 Shri Janki Dass Dogra and he is stated to have prepared the Tatima Ext.PW3/A on the orders of the Tehsildar, but even no such orders were placed on record. He also stated that the Field Kanungo at the relevant time was present, but said Tatima is not verified by the Kanungo, which was prepared in the year 1995, just before filing the suit before the learned trial Court and another Tatima Ext.PW7/A was prepared on 15.11.1999 during the pendency of the suit allegedly as ordered by Tehsildar. Again his orders are not on record nor these Tatimas are verified by the Field Kanungo, which falsify the plaintiff’s case and raises a doubt on the testimony of the - 11 - Patwari aforesaid. Further, Tatima Ext.PW7/A itself contradicts the case of the plaintiff, it was shown to have been prepared on the spot in the year 1999. According to it, there were three pillars and retaining wall existing when it was prepared, but evidence on record shows that the construction was complete in the year 1993 and the defendant had been residing in the constructed house over the disputed land since the year1994, therefore, the case of the plaintiff stands contradicted. Thus, these documents cannot conclude the exclusive possession of the plaintiff as claimed by him. Therefore, in my considered opinion, the relief of mandatory injunction/ vacant possession was rightly denied by the First Appellate Court to the plaintiff. 13. In view of the above, substantial question of law No.1 and 2 are accordingly answered and question No.3 is neither a substantial question nor it does arise at all for its determination on merits. 14. No other point raised or pressed before me. Thus, for the reasons aforesaid, the appeal merits dismissal and is accordingly dismissed. However, it is made clear that in case any of the party applies for partition, it shall - 12 - be expeditiously decided/ disposed of by the Court concerned. 15. The parties are left to bear their own costs. 16. Send down the records. (Surinder Singh ) Judge October 10, 2011. (Pds)