One
Sh. Jawala Dass was owner in possession of the landed property, comprised in
khasra numbers 82 and 83 along with two houses situate, situate in mauza
Seehpur of Tehsil and District Shimla. Jawala Dass died on February 28, 1972.
He was succeeded by his widow Hem Dagsi, son Devi Saran and daughter Ram Kali.
Devi Saran also died and was succeeded by his widow Reshmu Devi. Hem Dassi
(widow of Jawala Dass) gifted her l/3rd share in the properties left by Jawala
Dass, including the suit property, to Nirmala. Nirmala, Ram Kali and Reshmu
became owners in 'possession of the property of Jawala Dass including the
property to the extent of l/3rd share each. In the year 1974, Reshmu Devi and
Ram Kali gifted their respective shares in the property left by Jawala Dass, in
favour of Hari Sinha. The plaintiff and defendant became joint owners in
possession of the property. The plaintiff became owner to the extent of 2/3rd
share and the defendant in respect of other l/3rd share.
In the
year 1985, Hari Sinha filed suit for injunction seeking a restrain on the
Nirmala from demolishing the two houses located on khasra numbers 82 and 83
(suit property). The defendant in an application under Order 39 rules 1 and 2,
C.P.C. was restrained from demolishing these two houses during the pendency of the
suit. The suit was dismissed in default in August 6, 1985. Hari Sinha moved an
application for restoration of the suit which was allowed. However in the
integrum, it is alleged, Nirmala demolished the houses and in its place raised
two new houses. In these circumstances, the Hari Sinha the suit for injunction
and filed another suit.
Hari
Sinha claims possession of his 2/3rd share in the property, including houses,
by of partition and for rendition of accounts in respect of the benefits
derived by the Nirmala from the houses on the suit property.
The
trial Court found the Hari Sinha to be owner of the suit property to the extent
of 2/3rd share except the new houses constructed by the defendant and, passed a
preliminary decree for partition. The trial Court valued the demolished
structure of the old house at rupees 15,000/- and direct that it shall be taken
into consideration at the time of partition. The claim for rendition of
accounts was dismissed. The defendant was restrained from changing the nature
of the suit property or alienating it in any manner till the completion of the
partition.
Dis-satisfied
Nirmala filed an appeal before the Additional District Judge, Shimla who by her
impugned judgment dismissed the appeal. Additional District Judge up held the
findings of the trial Court that the Hari Sinha is the owner of the suit property
to the extent of 1/3rd share and entitled to partition of the suit property
except the new houses constructed by the Nirmala on khasra number 82.
Nirmala
resists the suit. Allegations are controverted. Maintainability of the suit is
disputed. It is pleaded that the civil Courts have no jurisdiction to direct
the partition of the suit property in view of the provisions of Section 171 of
the H.P. Land Revenue Act. Plea of gift by Ram Kali and Reshmu of their
respective shares in the property of Jawala Dass, including the suit property
in favour of the Hari Sinha, is not disputed. It is also admitted that Hem
Dassi gifted her 1/3rd share to the Nirmala. According to the Nirmala, Devi
Saran during his life time executed an agreement relinquishing his rights over
the suit property comprised in Khasra number 82 and the houses situate over it.
Reshmu and Ramkali, pleads Nirmala, had no right, title or interest left in the
suit property and no valid gift was executed by Reshmu and Ramkali of their
respective shares in favour of the Hari Sinha as they were not owners of the
said property. According to the Nirmala, the material of the house was merely
debris without any market value.
The trial
Court found that though Hari Sinha had filed an earlier suit seeking to
restrain the Nirmala from raising any construction over the suit property but
the same was withdrawn as, in the meanwhile, the Nirmala completed the construction
and his suit became in fructuous. The Court further noticed that Nirmala has
not led any evidence except from tendering copy of the order of the withdraw
Exhibit DX from which it cannot be gathered that injunction earlier sought was the
same or not. The trial Judge sent for the file and perused the plaint. The Additional
Court found that the previous suit was only for restraining the Nirmala from
raising construction of the house the suit
is for restraining the Nirmala from changing the nature of the suit property
and the injunction so sought is different from the earlier injunction.
The
trial Court in respect of credibility but even where it has rejected the
witnesses accepted by the trial Court, the same is no ground for interference
in second appeal when it is found that the appellate Court has given
satisfactory reasons for doing so. In a case where from a given set of
circumstances two inferences are possible. One drawn by the lower appellate
Court is binding on the High Court in second appeal. Adopting any other
approach is not permissible.
The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence." This appeal fails and dismissed with costs.
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