Rajinder Kumar v.

Dhruv Dutt and others

IN THE COURT OF DIKSHA DASS RANGA, ADDITIONAL

CIVIL JUDGE (SR.DIV.), KALKA (U.I.D. No. HR-0311).

Case Type : CS

Filing No : 1290/2014

Filing Date : 13.03.2014

Registration No : 975/2014

Registration Date : 13.03.2014

Date of Institution : 13.03.2014

CNR No. : HRPKA0-000109-2014

Date of Decision: 17.01.2019

Rajinder Kumar son of Sh. Ram Kishan son of Sh. Kapuriya,

aged 67 years, resident of Village Bhairon Ki Sair, Tehsil

Kalka, District Panchkula.

...Plaintiff.

Versus

1. Dhruv Dutt

2. Som Chand

3. Prem Chand

4. Gian Chand.

All sons of Sh. Anant Ram son of Sh. Kapuriya,

All residents of Village Bhairon Ki Sair, Tehsil Kalka,

District Panchkula.

5. Ratni wife of Sh. Kishan R/o Village Kanguwal, Tehsil

Kalka, District Panchkula.

(Diksha Dass Ranga)

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 Rajinder Kumar v. Dhruv Dutt and others

6. Smt. Nirmala wife of Sh. Ram Rattan resident of Village

Kanguwal, Tehsil Kalka, District Panchkula.

7. Smt. Urmila wife of Sh. Labh Singh, resident of H. No. 655,

Lower Kurari Kalka, Tehsil Kalka, District Panchkula.

...Defendants.

Suit for Permanent Injunction.

Present: Shri Subhash Adhlakha, Advocate for the plaintiff.

Shri Ajay Chaudhary, Advocate for the defendant nos. 1 to 4.

Shri J.K. Chauhan, Advocate for the defendant nos. 5 and 6.

Shri Ramesh Goyal, Advocate for the defendant no. 7.

Judgment

1. The present suit has been filed by plaintiff seeking relief of

Permanent Injunction restraining defendants from interfering in his

peaceful possession over the suit property i.e. land comprised in Khewat

No. 18//6 Khatauni no. 25 Khasra no. 116 (6-11) and land comprised in

Khewat/Khatauni no. 14//6/20 Khasra no. 109 (6-3) situated at Village

Bhairon Ki Sair, H.B. no. 149, Tehsil Kalka, District Panchkula till the

suit property is partitioned by metes and bound.

2. In brief, the plaintiff stated that he is a resident of Village

Bhairon Ki Sair, Tehsil Kalka, District Panchkula. Parties to the suit are

related to each other. Defendants are nephews of the plaintiff having their

common ancestor Sh. Kapuria. Plaintiff and defendants are the joint

owners of the suit land and are recorded as such in the revenue record.

The suit land has not been partitioned by metes and bounds. The

(Diksha Dass Ranga)

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 Rajinder Kumar v. Dhruv Dutt and others

defendants are threatening to carve plots and passages; they are also

threatening to raise construction over the suit property. They threatened

that they shall execute sale deed by selling the land including the passages

but shall not deducted the land of passages from their share. Plaintiff

requested defendants not to pursue their illegal design but they refused to

do so. The defendants came on the suit land along JCB Machine to carve

out passage in the last week of February, 2014 but could not succeed in

their evil design. Again in the first week of March, 2014 they tried to raise

construction but could not succeed due to timely intervention of plaintiff.

They threatened to raise construction and carve passages and plots on the

specific portion of the suit land. They even filed a false and frivolous suit

for Permanent Injunction against the plaintiff in respect of Khasra no. 107

which is not subject matter of present suit. Hence, the suit.

3. Upon notice, defendants no.1 to 4 appeared and filed their

written statement wherein they took preliminary objections on the

grounds of maintainability, locus standi and concealment of material facts

from the court. They submitted that they have already sold their share in

the suit property. They are owners of 4 Biswas 10 Biswansi of land which

is used as passage by their vendees; apart from this they have not sold

any land in Khasra no. 109 Village Bhairon Ki Ser Tehsil Kalka. Plaintiff

cannot seek injunction against them because they are co-sharers. Present

suit is a counter blast to their Civil Suit titled Prem Chand & others Versus

Rajinder Kumar which pertains to khasra number 107 Min Village

Bhairon ki Ser. Plaintiff has filed present suit pertaining to Khasra no. 16

(Diksha Dass Ranga)

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(6-11) and Khasra no. 109 (6-3) whereas there is no such Khasra no. 16

owned by plaintiff or defendants. They have already sold their share in

Khasra no. 116 3 ½ years ago vide registered sale deeds dated

01.10.2010; mutations no. 1681 and 1682 dated 31.10.2010 have also

been sanctioned. Suit land is agricultural land which can only be

partitioned by filing partition application before the Assistant Collector 1 st

Grade Kalka but has not filed any such application for partition. As such

the plaintiff cannot seek remedy of injunction against other co-sharers.

4. In their written statement, defendants number 5 and 6 stated

that all the co-sharers had orally partitioned the suit land and are in

separate possession over their specific share. Defendants no. 1 to 4 sold 6

biswas land along with a constructed 100sq feet house vide Sale Deed no.

2285 dated 01.10.2010. They also sold 2 Bighas 14 biswas land to the

defendant no. 5 from Khasra no. 116 vide Sale Deed no. 2286 dated

01.10.2010. They have not raised any construction over the suit property.

After denying rest of the averments, they prayed for dismissal of the suit.

5. In her written statement, defendant number 7 stated that she

is a bona fide purchaser of the house existing on the suit property i.e., land

measuring 0-1-10 (One Biswa and Ten Biswanis) comprised in Khewat

no. 6 min Khasra no. 116 qua the extent of 3/262 share which she

purchased from its previous owner Smt. Ratni wife of Shri Kishan,

resident of Village Kanguwal, Tehsil Kalka, District Panchkula for lawful

consideration through registered Sale Deed no. 322 dated 25.04.2011.

Mutation no. 1744 was also sanctioned in her favour on 30.06.2011.

(Diksha Dass Ranga)

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 Rajinder Kumar v. Dhruv Dutt and others

There was a constructed room over the land purchased by her. She

extended and renovated the old construction, and now there is a singe

storeyed house over the land. After denying rest of the averments she

prayed for dismissal of the suit.

6. Replication was not filed. From the pleading of the parties

following issues were framed by order dated 05.05.2016:-

(i) Whether the plaintiff is entitled to a decree for

permanent injunction as prayed for? OPP

(ii) Whether the present suit is not maintainable in the

present form?OPD

(iii) Whether the plaintiff has no locus standi to file the

present suit.?OPD

(iv) Whether the plaintiff has concealed material facts from

the Court? OPD

(v) Relief.

7. Both the parties were given opportunity to lead their

respective evidence. Plaintiff got two witnesses examined and relied upon

following documents:-

Ex. P1 Aks Shijra

Ex. P2 Jamabandi

Ex. P3 Aks Shijra

Ex. P4 Jamabandi

On the other hand defendants got two witness examined and

relied upon following documents:-

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 Rajinder Kumar v. Dhruv Dutt and others

Ex. DW7/A Sale Deed 322

Ex. DW7/B Mutation no 1744

Ex. DW7/C Receipt of electricity

Ex. DW7/D Electricity Bill

Ex. DX Mutation no 1681

Ex,DY Mutation No 1682

8. Thereafter, evidence of both the sides was closed. No rebuttal

evidence was led by plaintiff, therefore, it was also closed.

9. Arguments were advanced by counsels of both the parties.

After listening to the arguments of both the sides and after going through

the evidence on record the issue-wise findings and reasons thereto are as

following:-

Issue No. (i)

10. The onus to prove this issue was on the plaintiff. In order to

discharge his onus he got himself examined as PW 1 and tendered his

affidavit Ex.PW1/A wherein he reiterated the version of the plaint. In his

cross-examination he stated that he is owner of 100 bhiga land in village

Bhairon ki Ser. He is not owner of entire kharsa number but the khasra

numbers are divided in Mins in which his share fall. He can not tell how

much land he sold from his share. He made sale of his land with

concurrence of other co-sharers. He admitted that present case does not

pertain to khasra number 16 rather to khasra number 116. Defendants

have sold their half share in khasra number 116. No land has been sold

from khasra number 109. He and defendants, both have equal right over

(Diksha Dass Ranga)

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 Rajinder Kumar v. Dhruv Dutt and others

khasra number 109. He has not relied upon any photos regarding

construction or JBC machine on the suit property. Neither of the parties

have fenced the suit property. Defendants tried to raise construction over

the suit property. He has filed 3-4 cases against the defendants. He has

never filed any case for partition of the suit property.

11. PW2- Sushil Kumar Sharma tendered his affidavit Ex.

PW2/A wherein he supported the stand of the plaintiff. In his cross-

examination he stated that he runs a dairy at Kalka. He has not mentioned

khasra numbers of the suit property in his affidavit. He has not given

evidence in any of the cases filed by the plaintiff. They are occupants over

the land of the plaintiff. Plaintiff is his friend. He is not a summoned

witness in the present case and he is giving evidence according the

plaintiff.

12. On the other hand, defendant Ratni Devi got herself

examined as DW1 and tendered her affidavit EX.DW1/A wherein she

reiterated the stand taken by her in her written statement. In her cross-

examination she stated that she can not recall the directions mentioned in

the Sale Deed vide which she purchased 2 bigha 14 biswa land. She had

only purchased share. The land purchased by her is used for agricultural

purpose; she has not raised any construction over the land. She was not a

witness to Sale Deed executed in favour of defendant no. 6. Their vendors

left passages on the land purchased by them.

13. DW2- Dhruv Dutt tendered his affidavit Ex.DW2/A wherein

he supported the stand of the defendants. In his cross-examination he

(Diksha Dass Ranga)

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 Rajinder Kumar v. Dhruv Dutt and others

stated that his grandfather was Kapuria, who had two sons: Anant Ram

and Ram Krishan, both have died. Ram krishan was his uncle, whose son

Rajinder is plaintiff in the present case. He admitted that khasra number

116 and 109 have not been partitioned till date. Their vendees have raised

construction over the portions of land sold by them. He admitted that the

passaged left by them have not been entered in the revenue record. The

revenue record show the passage in their name and ownership. They did

not seek any permission from the plaintiff to carve passages. Khasra

number 109 is owned by the four brothers in half share.

14. In the present case, plaintiff has sought relief of permanent

injunction arguing that defendants are raising construction over the suit

property therefore they may restrained till suit property is partitioned by

metes and bounds. The suit property is admittedly agricultural land so

case for partition shall be maintainable before the Assistant Collector 1 st

Grade. Plaintiff had admitted in his cross-examination that he has not filed

any partition application before the Revenue Authorities seeking partition

of suit property. It is observed that defendants no. 1 to 4 sold their share to

defendants No. 5 to 7 who raised construction and renovated the old

construction. However, there is no evidence on record that any new

construction was raised by any of the defendants. Even if, it is presumed

that defendants are raising construction over the suit property, injunction

cannot be passed against them as they are co-sharers over the suit property

as they had purchased share from defendants no. 1 to 4. Every co-sharer

has right to enjoy every inch of the land till the land is partitioned by

(Diksha Dass Ranga)

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U.I.D. no. HR0311
 Rajinder Kumar v. Dhruv Dutt and others

metes and bounds. Till date, partition has not taken place before any

Revenue Authority nor plaintiff had moved any application for partition

thus he cannot restrain defendants from enjoying their share in the suit

property.

15. In light of foregoing discussion, it is clear that plaintiff has

not able to discharge his onus thus this issue is decided against the

plaintiff and in favour of defendants.

Issue No. (ii) to (iv)

16. These issues are inter-connected, therefore, these issues are

discussed and decided together. The onus to prove these issues was on the

defendants. In light of discussion of issue no. 1, it is clear that suit of

plaintiff is not maintainable and he had no locus standi or cause of action

to file the same

Relief.

17. As a sequel of foregoing discussion, suit of plaintiff fail and

is dismissed with cost. Decree sheet be prepared. File be consigned to the

record room, after due compliance.

Pronounced in open court (Diksha Dass Ranga)

Dated: 17.01.2019 Additional Civil Judge (Senior Division),

Kalka.

Note:- All the nine pages of this judgment have been checked and signed
by me.
(Diksha Dass Ranga)

Dated: 17.01.2019 Additional Civil Judge (Senior Division),

(Manoj) Kalka.

(Diksha Dass Ranga)

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 Rajinder Kumar v. Dhruv Dutt and others

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Value of the suit for the purpose of court fee Rs. 25/-
Value of the suit for the purpose of jurisdiction fee Rs. 200/-
Decree-Sheet

IN THE COURT OF DIKSHA DASS RANGA, ADDITIONAL

CIVIL JUDGE (SENIOR DIVISION), KALKA.

Case Type : CS

Filing No : 1290/2014

Filing Date : 13.03.2014

Registration No : 975/2014

Registration Date : 13.03.2014

Date of Institution : 13.03.2014

CNR No. : HRPKA0-000109-2014

Date of Decision: 17.01.2019

Rajinder Kumar son of Sh. Ram Kishan son of Sh. Kapuriya,

aged 67 years, resident of Village Bhairon Ki Sair, Tehsil

Kalka, District Panchkula.

...Plaintiff.

Versus

1. Dhruv Dutt

2. Som Chand

3. Prem Chand

4. Gian Chand.

All sons of Sh. Anant Ram son of Sh. Kapuriya,

All residents of Village Bhairon Ki Sair, Tehsil Kalka,

District Panchkula.

(Diksha Dass Ranga)

ACJ(SD)/Kalka
U.I.D. no. HR0311
 Rajinder Kumar v. Dhruv Dutt and others

11

5. Ratni wife of Sh. Kishan R/o Village Kanguwal, Tehsil

Kalka, District Panchkula.

6. Smt. Nirmala wife of Sh. Ram Rattan resident of Village

Kanguwal, Tehsil Kalka, District Panchkula.

7. Smt. Urmila wife of Sh. Labh Singh, resident of H. No. 655,

Lower Kurari Kalka, Tehsil Kalka, District Panchkula.

...Defendants.

The present suit has been filed by plaintiff seeking relief of

Permanent Injunction restraining defendants from interfering in his

peaceful possession over the suit property i.e. land comprised in Khewat

No. 18//6 Khatauni no. 25 Khasra no. 116 (6-11) and land comprised in

Khewat/Khatauni no. 14//6/20 Khasra no. 109 (6-3) situated at Village

Bhairon Ki Sair, H.B. no. 149, Tehsil Kalka, District Panchkula till the

suit property is partitioned by metes and bound.

Plaint presented on 13.03.2014.

This suit came up today the 17th day of January of 2019 for
final disposal before me (Diksha Dass Ranga, Additional Civil Judge, Se-
nior Division, Kalka) in the presence of Shri Subhash Adhlakha, Advocate
for the plaintiff. Shri Ajay Chaudhary, Advocate for the defendant nos. 1
to 4, Shri J.K. Chauhan, Advocate for the defendant nos. 5 and 6 and Shri
Ramesh Goyal, Advocate for the defendant no. 7.
It is ordered that suit of plaintiff fail and is dismissed with
cost. Decree sheet be prepared. The counsel fee is assessed as Rs. 5000/-
for both the sides. Decree sheet be prepared. Original un-exhibited docu-
ments be returned to the parties counsel after retaining photocopies of
same on file. Any amount lying un-disbursed be disbursed as per rules.
Summoned file, if any, be separated and sent to quarter concerned. File be
consigned to record room, after due compliance.

(Diksha Dass Ranga)

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 Rajinder Kumar v. Dhruv Dutt and others

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Memo of Costs
Plaintiff Defendant
1. Stamp for plaint 25-00 00-00
2. –do- for power 02-00 06-00
3. Pleader’s fee 5000-00 5000-00
4. Stamp for Exhibits 00-00 00-00
5. Sub’s for witnesses 00-00 100-00
6. Misc. 20-00 00-00
7. Process fee 50-00 00-00

Total 5097-00 5106-00

Given under my hand and seal of the court on this 17th day of January of 2019.

(Diksha Dass Ranga)

Additional Civil Judge (S.D.),
Kalka

"I attest to the accuracy and

authenticity of this doucment."
Digitally signed by RAJIV BHATIA
DN: cn=RAJIV BHATIA,
(Diksha Dass Ranga) ou=JUDICIAL,CID - 6376677,
ACJ(SD)/Kalka
U.I.D. no. HR0311 o=DISTRICT AND SESSIONS
COURT PANCHKULA,
st=Haryana, c=IN
Date: 2019.02.04 15:45:55 +0530