Dharam Chand Chaudhary, J.�Predecessor-in-interest of the present appellants, Shri Bishan Dutt, hereinafter referred to as the defendant, feeling aggrieved and dissatisfied by the judgment and decree dated 7.4.2001, passed by learned District Judge, Solan in Civil Appeal No. 8-S/13 of 2001, had preferred the present appeal with a prayer to quash and set aside the same.
2. Challenge to the impugned judgment and decree is on the grounds inter alia that the same on account of illegalities and irregularities committed by learned lower appellate Court is neither legally nor factually sustainable and the judgment and decree passed by the trial Court rather reversed on highly conjectural and erroneous grounds. The findings that the property in dispute is still joint between the parties, are stated to be contrary to the oral as well as documentary evidence available on record. The Jamabandis in previous suit Ex.DA and DB have been pressed into service qua this aspect of the matter. The court below allegedly passed the impugned judgment and decree mechanically and without application of mind. The provisions contained under Section 17 of the Registration Act and Section 35 of Stamps Act are stated to be wrongly relied upon. Merely that the family partition has not yet been implemented was no ground to discard the claim set out by the defendants. The overwhelming evidence suggesting that the predecessors of the parties had been litigating in the Civil Court on the issue of private partition and the matter is still pending in the Apex Court has been erroneously ignored. The Court below has refused erroneously to invoke the rule of estoppel against the plaintiff because as per the evidence on record, the plaintiff himself has been claiming the parties in separate possession on the basis of private partition. Therefore, the findings recorded by learned lower appellate Court that the suit land is joint of the parties have been stated to be erroneous and perverse, hence sought to be quashed and set aside.
3. The appeal has been admitted on the following substantial questions of law:
1. Whether the judgment of the lower appellate court is vitiated by material irregularity and is based on conjecture and the findings reached thereon are perverse?
2. Whether the lower appellate Court was right to reject the plea of the defendant that there has been a partition of the suit property on the grounds that no instrument of partition was prepared
3. Whether the plaintiff was estopped from filing the suit in view of the admissions made in the previously instituted suit?
4. It is well settled at this stage that the findings recorded by the Courts below on appreciation of the evidence should not normally be interfered with by the High Court in second appeal, unless and until from the record held to be perverse and legally unsustainable.
5. The appeal has been admitted on the aforesaid substantial questions of law. Whether such questions of law actually arise for determination in the given facts and circumstances of this case, needs reappraisal of the evidence available on record. The case of the plaintiff as set out in the plaint in a nut shell is that the suit land bearing Khata No. 2 min, Khatauni No. 2, Khasra No. 246/236/104, measuring 3-15 Bighas, situated in Mauza Parag Tehsil and District Solan, as per the Jamabandi for the year 1990-91, Ex.PB, is joint of the parties being successors of late Shri Shiv Dayal, but for effective management and smooth cultivation different portion of the suit land are in separate possession of the plaintiff, the defendant and other co-sharers as per the family arrangement already taken place. The suit land is abutting to National Highway No. 22 and the defendant in order to grab the same and with a view to dispossess the plaintiff therefrom, started threatening the plaintiff from changing its nature by raising construction thereon. Hence the suit for permanent prohibitory injunction restraining the defendant from interfering in that portion of the suit land over which the plaintiff is in possession or changing its nature by raising any construction, thereon in any manner whatsoever. Two pillars, the defendant allegedly erected over the suit land have also been sought to be demolished and vacant possession of such land restored to the plaintiff.
6. The defendant, however, contested the suit on the ground that the property of late Shri Shiv Dayal stands divided amongst his successors in a family partition qua which ''Gunnas'' were admittedly prepared on 1.11.1959, which has not only been accepted but implemented but acted upon also by his successors. The Gunnas were signed by all concerned including Shri Shiv Dayal and his legal representatives S/Shri Jai Ram, Hari Ram, Bhawani Dutt, Laxmi Dutt, Bishan Dutt and Ishwari Dutt, and as the plaintiff has derived title in the suit land through Bhawani Dutt, the family arrangement in the shape of gunnas already made is binding upon him also.
7. It is denied that the defendant has ever threatened the plaintiff to change the nature of the suit land or raise construction thereon and rather he allegedly constructed his house long back i.e. well before family partition having taken place on 1.11.1959. The plaintiff (defendant No. 1 in previously instituted civil suit No. 315/1 of 1993), in the written statement filed in Civil Suit No. 315/1 of 1993 has himself set up the plea of private partition of the land and as such according to the defendants-appellants, he cannot be allowed to blow hot and cold in the same breath.
8. On the pleadings of the parties, the trial Court has framed the following issues:-
1. Whether the plaintiff is entitled for relief of injunction as alleged? OPP
2. Whether the parties are in possession of their respective shares as per the family partition is so, its effect? OPD
3. Relief.
9. While answering issue No. 1 against the plaintiff and issue No. 2 in favour of the defendant, the trial Court has dismissed the suit. Learned lower appellate Court, no doubt, has agreed with the findings qua family partition recorded by the trial court and also that the plaintiff has failed to prove the interference by the defendant in the suit land by raising construction thereon, however, declined the decree for mandatory injunction and concluded that the suit land has not yet been partitioned, in accordance with law, hence restrained the defendant from raising any construction and changing the nature of the suit land till the same is partitioned under due process of law. The relevant portion of the judgment passed by learned lower appellate Court is reproduced as under:
"23 In the present case the respondent-defendant has denied the title of the appellant qua the specific portion of the suit land in view of the denial of the title of the appellant by the respondent in written statement filed by the respondent-defendant and in order to prevent multiplicity of judicial proceeding I am of the view that plaintiff is entitled for the relief of injunction only. The appellant-plaintiff did not adduce any positive, cogent and reliable evidence in order to prove that the respondent had raised the construction over the suit land during the pendency of the suit. No report of the Local Commissioner has been obtained by the appellant in order to prove that the respondent has raised the construction after the issue of ad-interim injunction by the Court. Evidence adduced by the appellant are not sufficient to grant decree of demolition. Even for the decree of demolition against the co-owners it is mandatory upon the other co-owners to prove special damage. In the present case appellant did not prove any special damage against the co-owner as required under law. The appellant also did not prove that the respondent has raised the construction over the suit land during the pendency of the suit exceeding his share. None of the appellant witness has stated that the respondent raised construction exceeding his share. PW-1 is simply photographer who took the photographs. The testimony of PW-1, PW-2 and PW-3 is not sufficient to hold that the appellant had sustained any special damage because PW-1 and PW-2, PW-3 did not state that the respondent had raised construction over the suit land exceeding his share. Hence, I hold that the special damage is not proved by the appellant and the appellant is not entitled for the decree of demolition. Prohibitory injunction is granted against the respondent-defendant and respondent-defendant is restrained from raising any type of construction over the suit land and changing the nature of the suit land till the suit land is partitioned by way of due process of law. Other prayers of the appellant are declined. Hence, the judgment and decree of the learned trial court are modified to this extent only. Hence, point No. 1 is answered in Party Yes and partly in No."
10. The reappraisal of the evidence available on record leave no manner of doubt that by way of family partition, the suit land stands partitioned amongst the successors of deceased Shiv Dayal. The successors including the parties to the suit have partitioned the land for effective management and cultivation. The fact, however, remains that the suit land has not yet been partitioned as per due process of law nor any instrument of partition prepared and given effect in the revenue record. The so called Gunnas allegedly prepared on 1.11.1959, has not seen the light of the day being not produced in evidence by either party. Otherwise also, the gunnas so prepared should have been given effect in the revenue record pertaining to the suit land so that the shares of each successors viz-a-viz its khasra numbers could have been mentioned in the revenue record. The fact, however, remains that even as per own case of the plaintiff as set out in the plaint and also in the written statement to previously instituted civil suit No. 315/1 of 2013 reproduced by learned District Judge, Solan in the judgment Ex.DX rendered in the appeal preferred against the judgment and decree of Sub Judge 1st Class, Kandaghat in previously instituted civil suit No. 242/1 of 1990 reveals that he himself has admitted the suit land in separate possession of all successors pursuant to a family arrangement.
11. On behalf of the defendants, the judgment Ex. PA in another previously instituted civil suit No. 432/1 of 1991 rendered by learned Sub Judge, Kandaghat has been pressed into service to show that the plea raised by the defendants qua the suit land have been coming in their possession even prior to family settlement, was also not answered in their favour is not of any help to his case for the reason that on issue No. 2, the defendant in that suit had not pressed any findings. Above all the land in dispute in that suit was different to that of the subject matter of dispute in the present lis.
12. The defendant has placed reliance on the judgment Ex.DX aforesaid. In that lis also Himanshu Sharma, the plaintiff herein was plaintiff and he has challenged the alienation of the land to defendant M/s Mohan Meakin Pvt. Limited, defendant No. 1 therein on this very ground that the land, subject matter of dispute in that suit, was joint of the parties, however, the suit was dismissed vide judgment and decree Ex.DX while arriving at a conclusion that the same was in separate possession of all co-sharers under family arrangement. This judgment is not of any help to the case of the defendant also because the land belonging to the parties in a family partition seems to have been partitioned and they are in separate possession thereof as per their respective shares, however, the fact remains that the land has never been partitioned as per due process of law nor any instrument of partition ever prepared and given effect in the revenue record qua the family settlement so arrived at between them. Therefore, the documentary evidence relied upon by the parties on both sides is not of much help to them.
13. As regard the oral evidence, the Court below has concluded that the plaintiff has failed to prove any interference having been made by the defendant over the suit land or any portion thereof nor he has been found to have raised any construction over the suit land or any portion thereof. The decree for possession by demolition of the construction allegedly raised by the defendant, over the suit land has also been declined. Therefore, in a situation where the suit land has not been partitioned under due process of law nor family settlement arrived at between the parties is given effect in the revenue record, it is not understandable as to how the conclusion drawn by learned lower appellate Court that no construction shall be raised over the suit land till the partition thereof under due process of law can be said to be erroneous or perverse and legally unsustainable that too when the defendant as per the case set out in the written statement has neither caused any interference nor raised any construction over the same.
14. Principle of estoppel is also not attracted in the case in hand as the land in dispute in this case is different and distinct and not same and similar to the one in previously instituted civil suit bearing registration No. 315/1 of 1993. The plaintiff (defendant therein) no doubt has set up the plea of private partition in a family settlement, however, maintained that irrespective of such partition minor adjustments in the respective shares of the co-sharers were left to be taken into consideration at the time of making separate revenue entries. This shows that the settlement so arrived at is not acted upon and given effect in the revenue record. This seems to be the stand of the plaintiff even in that suit also.
15. In view of the discussion hereinabove, the learned lower appellate Court has not committed any illegality or irregularity nor the defendants can be said to be aggrieved or dissatisfied, in any manner whatsoever, with the findings that no construction shall be raised over the suit land till the same is partitioned under due process of law. Therefore, no question of law, muchless the substantial question of law, as formulated in this appeal, arises for adjudication and the appeal as such deserves to be dismissed. All the questions of law formulated, therefore, stand answered accordingly.
16. In view of the above, this appeal fails and the same is accordingly dismissed. Parties are left to bear their own costs.
