22 September 2004
Supreme Court
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KISHORI LAL Vs MADAN GOPAL (D) BY LRS. .

Case number: C.A. No.-006219-006220 / 2004
Diary number: 14128 / 2002
Advocates: Vs ANIS AHMED KHAN


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CASE NO.: Appeal (civil)  6219-6220 of 2004

PETITIONER: Kishori Lal & Anr.                                       

RESPONDENT: Madan Gopal (Dead) by L.Rs. & Ors.       

DATE OF JUDGMENT: 22/09/2004

BENCH: P. VENKATARAMA REDDI & P.P. NAOLEKAR

JUDGMENT: JUDGMENT @ SPECIAL LEAVE PETITION (C) NO.14675-14676 OF 2002

P. Venkatarama Reddi, J.

Leave granted. The appellants were the defendants in the two suits  filed by Madan Gopal, who is no more and is now  represented by his legal representatives who are  respondents herein. The first suit was filed to restrain the  first defendant (appellant herein) from making any  construction on the spot marked ’CB’ in the sketch annexed  to the plaint or in any other part of the land and also to  restore the original position of the land at point ’CB’ and to  restore the entry gate to the suit property. The second suit  was filed seeking permanent injunction restraining the  defendants from changing the nature of the suit land or  raising any construction or transferring the same to the  detriment of the plaintiff. The plaintiff also prayed for a  permanent injunction restraining defendants No.1 and 5  from installing and working the sawing machine at point ’A’  as shown in the sketch plan. The original plaintiff’s father and defendants’ fathers  were brothers being the sons of one Kanshi Ram. The  plaintiffs claimed that Khasra Nos. 119 & 120 were Abadideh  inam land belonging to the said common ancestor and the  defendants have no exclusive rights over the said land. In  other words, the plaintiff claimed to be co-owner along with  the defendants 1 to 4. The plaintiff further claimed that  there was an entrance and passage at point ’CB’ (shown in  the plan attached to plaint) leading to K.No.119 and it has  been annexed by the defendant No.1 who was proposing to  raise shops thereon. The 5th defendant is a tenant of  defendant No.1 and he had installed a saw machine on the  portion of the land let out to him by 1st defendant. Both the suits were tried together and they were  dismissed. On appeal filed by the plaintiffs, the first  appellate Court held that the suit property is the joint and  undivided property of the plaintiff and defendants 1 to 4 and  in the absence of proof of ouster, the defendants cannot  claim to be in exclusive possession and raise constructions  thereon. It was further held that a passage existed at point  ’CB’ and the first defendant had no legal right to block or  raise any construction over the passage (leading to the land  in K.No. 119). It was also held that the Saw Machine was  installed by the 5th defendant without the consent of the co-

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sharers. The first appellate Court therefore restrained  construction at point marked ’CB’ or any other part of the  suit land and further directed defendant No.1 to restore the  entrance gate and passage to the suit land at point ’CB’. A  mandatory injunction was also granted directing defendant  No.5 to remove the structure raised and the Saw Machine  installed therein. On second appeal, the High Court confirmed the  permanent injunction granted by the appellate Court  restraining from raising constructions over suit property. The  mandatory injunction directing the first defendant to restore  the entrance gate and passage at point ’CB’ was upheld.  However, the injunction directing the removal of structure  and the saw machine installed by the 5th defendant was set  aside. The second appeal was thus allowed partly. We notice that the High Court did not frame substantial  question of law arising in the second appeal. However, the  High Court did consider the matter elaborately. We also  notice that the High Court did not consider the question  whether the suit property, not to speak of the passage at  ’CB’, is the joint undivided property of the plaintiff and  defendants 1 to 4, as held by the first appellate Court or it is  the exclusive property of the appellants herein. Both     before the trial Court and the first appellate Court, there was  a debate and finding on the question whether the  appellants-defendants could get the exclusive right of  ownership by virtue of Section 11 of J&K Common Lands  (Regulation) Act, 1956. It is the contention of the appellants that the land in  question being abadi land, held by them at the  commencement of the Act, had vested in them. This  contention, though upheld by the trial Court, was negatived  by the appellate Court on the ground that the appellants  could not establish that the suit land was ’under the house’  owned by them (defendants 1 to 4) or that they fell within  the category of non-proprietors/non-tenants. In the  memorandum of second appeal, the following question has  been raised. "As to whether the provisions of Section  11 (wrongly mentioned as Section 17) of  the Common Land (Regulation) Act  could be claimed by a person who had  let out the land in question in abadi deh  for purposes of commercial use and  construction in particular and what is the  meaning of the word ’house’ as  appearing in the said Section?"

It is the contention of the learned senior counsel  appearing for the appellants that the finding of the first  appellate Court in regard to the applicability of Section 11 is  unsustainable. It is submitted that even according to the  document (copy of field book) filed along with the counter  affidavit of the first respondent in the SLP, there was a  house in Khasra No. 119. Both the learned counsel are not  clear whether this document was adduced in evidence by  any of the parties at any stage. The High Court did not  address itself to the question of law whether on the facts  proved or admitted, the appellants-defendants are entitled  to the benefit of Section 11 of the Act. If they are so  entitled, the finding of appellate Court that the suit land is  joint property, cannot prima facie stand.  The High Court  only focused its attention to the question of existence of the  passage at point ’CB’ and whether the first defendant or his  tenant could raise any constructions thereon. At the same

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time, the High Court upheld the permanent injunction  granted by the appellate Court restraining the first  defendant from making any construction on the point  marked ’CB’ or any other part of the suit land (emphasis  supplied). The suit land undisputably includes K.No.119.  Perhaps, if substantial question of law had been framed, this  omission on a crucial point would not have occurred. We  must, however, clarify that we have not gone into the merits  of this contention. We should not be understood to have  expressed any view with reference to the finding of the  appellate Court in regard to the applicability of Section 11 of  the Common Laws (Regulation) Act relied upon by the  appellants’ counsel. Coming to the next point as regards the passage at  point ’CB’, the first appellate Court recorded the finding that  the passage and the entrance gate at point ’CB’ did exist  and that the same should not have been meddled or  interfered with by the appellants. This finding based on the  appreciation of evidence was affirmed by the High Court.  However, it is the contention of the learned counsel for the  appellants that the alleged passage was undisputedly  located in Khasra No. 118 which is not the suit property and  therefore no injunction should have been granted in respect  of the alleged passage outside the suit land, i.e. the land  situate in K.Nos. 119 & 120. It is also submitted by the  learned counsel for the appellants that no easementary right  of way to the disputed suit lands through the point ’CB’ is  pleaded nor any evidence adduced on this aspect. According  to the learned counsel, the finding was given by the  appellate Court on the footing that it was also part of the  joint property which is legally incorrect. Ground No.vi in the  memorandum of second appeal covers this point. Without  going into the merits of this controversy, we take note of the  fact that the High Court did not consider the issue in regard  to passage from this perspective whether or not such  contention could be allowed to be raised by the appellants  and whether it merits acceptance are matters for  determination by the High Court. While expressing no view  on this aspect either, we would only like to observe that the  High Court should have dealt with the contention adverted  to above while dealing with this aspect. In the light of the above discussion, we remit the  second appeal to the High Court for fresh consideration after  framing appropriate substantial questions of law in regard to  the two points referred to above and render its decision  afresh as expeditiously as possible. The judgment of the  High Court is set aside and the appeals are allowed to the  extent indicated above. No costs.