Decided on January 08,2021

Sheetal Respondents


Sandeep Sharma,J. - (1.) Instant petition filed under Art. 227 of the Constitution of India, takes exception to judgment dated 9.10.2020 passed by learned District Judge, Shimla in CMA No. 37/2020 affirming order dated 5.9.2020 passed by learned Civil Judge, Court No. 3, Shimla, District Shimla in CMA No.303/2020 in Civil Suit No. 47/2020, whereby an application having been filed by the petitioner-plaintiff (hereinafter, 'plaintiff') under Order XXXIX, rules 1 and 2 CPC, seeking therein direction to restrain the respondents/defendant (hereinafter, 'defendants') from raising any type of construction over land denoted by Khasra No. 176, situate in Mohal Tafera, Post Office Kali Hatti, Hadbast No. 151, Sub Tehsil Dhami, District Shimla, Himachal Pradesh (hereinafter, 'suit land') during the pendency of suit, came to be dismissed.
(2.) For having bird's eye view of the matter, certain undisputed facts as emerge from the pleadings adduced on record by respective parties are that the plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from raising construction on suit land, as detailed herein above, and for granting mandatory injunction directing defendant No.1 to remove construction raised by him during the pendency of the suit, in the court of learned Civil Judge (Junior Division), Shimla, averring therein that he became co-owner to the extent of 843/255709 shares measuring 25-57-09 hectares in land comprised in Khewat Khatauni No. 1/1 to 9, total Khasra 133, measuring 25-57-09 Hectares, situate in Mohal Tafera, Post Office Kali Hatti, Hadbaast No. 151, Sub Tehsil Dhami, District Shimla, by virtue of sale deed dated 1.12.2014. Plaintiff also claimed that at the time of execution of aforesaid deed dated 1.12.2014, he was also delivered possession of Khasra Nos. 176 and 168, whereafter he had raised a Dhara on such land. Plaintiff also averred that since suit land is joint inter se parties, two co-owners namely Mukesh Kumar and Aruna Kumari, filed partition proceedings before competent Authority and during such proceedings, Tatima was issued by revenue agency depicting therein his possession on Khasra No. 176 i.e. suit land. Plaintiff further claimed before learned trial Court that in the aforesaid partition proceedings, respondent No.3 was being represented by respondent No. 2 on the strength of General Power of Attorney executed by respondent no.3, as such, he was fully aware of the factum with regard to sale of land to various persons, including him. Plaintiff alleged in the suit that respondent No.2 being General Power of Attorney of respondent No.3 got transferred some land by way of gift deed/sale deed in favour of his wife i.e. defendant No.1, and such, transactions are illegal and sham. Lastly, the plaintiff averred in the suit that on 8.6.2020, he, after having noticed factum with regard to unauthorized construction being carried out by respondent No.1 on suit land, has filed instant suit for permanent prohibitory injunction, restraining defendant No.1 from interfering in the suit land. Alongwith aforesaid suit, plaintiff also filed an application under Order XXXIX, rules 1 and 2 CPC, seeking interim injunction to restrain the defendants from raising any construction over the suit land till final disposal of the case.
(3.) Defendants, in their reply to the application, while admitting factum with regard to purchase of shares in the suit land to the extent of 843/255709, measuring 00-08-43 hectares in the joint land, comprised in Khewat Khatauni No. 1/1 to 9, total measuring 25-59 Hectares, categorically denied that exclusive possession of Khasra Nos. 176 and 168 was delivered to the plaintiff. Defendants claimed before learned trial Court that total area of Khasra No. 176 is 00-88-57 hectares and that of Khasra No. 168 is 00-43-05 hectares, whereas, plaintiff purchased area much lesser than the total area of Khasra Nos. 176 and 168 and as such, there was no occasion to deliver him possession qua entire area of aforesaid Khasra numbers. Defendants averred in their reply that defendant No.3 and his sons came in possession of Khasra Nos. 176 and 168, after the death of their predecessor-in-interest i.e. Dhani Ram, whereafter, they transferred some portion of suit land to defendant No.1. Defendants, claimed before learned trial Court that after purchase of aforesaid land, defendant No. 1, started construction work in March, 2019 and till date, she has spent a sum of Rs.35.00 Lakh on account of development of land as well as construction of boundary walls. Defendants specifically denied that the factum with regard to construction on suit land came to the knowledge of plaintiff on 8.6.2020 and they claimed before learned trial Court that they have no objection in case construction is carried out by plaintiff in some other portion of suit land, which is still vacant.;

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