Decided on October 30,1991

KHIMTI Respondents


D.P. Sood, J. - (1.) The disputed land belonged to Thakur Trilok Nath. Admittedly, it was under the joint tenancy of Smt. Kewali and Hukam Ram. In 1945-46, regular settlement was recorded in the column of possession of the revenue record as 1/3rd share in favour of Smt. Kewali Devi and 2/3rd share in favour of Sh. Hukam Ram respectively. Later on, proprietary rights were conferred on both the joint tenants and they continued to be recorded as joint owners thereafter throughout till the date of institution of the suit. On the death, of Smt. Kewali, her daughter Smt. Khimti succeeded to her estate. Similarly on the death of Sh. Hukam Ram his son Diyatu inherited his share in the disputed property. In the year 1980 a portion of the disputed land was sold to the appellant Smt. Soma Devi. The vendee started raising construction whereupon Smt. Khimti filed the instant suit seeking the relief of permanent prohibitory injunction against the appellant to the effect that she should not raise any construction by herself or through her authorised agents. The trial court decreed the suit and the said decision was affirmed by the first appellate court.
(2.) The appellant has come up challenging the impugned judgment and decree dated 10.12.1990 affirming the judgment and decree of the trial court.
(3.) The substantial question of law sought to be raised by the learned counsel for the plaintiff is that the court below has mis-read and misinterpreted the documentary evidence inasmuch as in 'misal haq-iat' Ex. DD for the year 1945-46, the first appellate court has concluded the parties to be joint tenants though having shown to be separately in possession of the suit land to the extent of 2/3rd and 1/3rd share respectively. In fact the well established law is that the tenancy-at-will cannot be bifurcated except with the consent of the landowners. This case has not been set up by the appellant in his pleadings. Even subsequently, while proprietary rights had been conferred, the parties, namely, Khimti and Diyatu have been shown to be joint owners which aspect of the case has been considered by the learned court below. Even the oral evidence has been discussed at length and the learned court below was absolutely right in having discarded the evidence adduced by the defendants. Thus there does not exist any substantial question of law to be determined by this Court.;

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