Dismissed

Sushila Devi v. Suraj Bhan etc.

Punjab & Haryana HC13 Jan 2011CR/198/2011

Case brief

AI extract

What is this about?

The High Court dismissed a revision petition seeking to quash an order restraining the petitioner (vendee of a share of joint family land) from raising construction pending partition. The court held no manifest error warranted interference under Article 227.

What did the court decide?

The revision petition is dismissed as devoid of merit; the order restraining construction remains valid.

Sushila Devi Vs Suraj Bhan etc. — Partition | Punjab & Haryana HC (2011)

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Civil Revision No.198 of 2011 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Civil Revision No.198 of 2011 (O&M) Date of Decision: January 13, 2011

Sushila Devi

.....Petitioner

Suraj Bhan and another

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.....Respondents

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CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA

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Present: Mr.G.S.Gandhi, Advocate for the petitioner.

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.....

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RAM CHAND GUPTA, J.(Oral)

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C.M.No.798-CII of 2011

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Application is allowed subject to all just exceptions.

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C.R.No.198 of 2011

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The present revision petition has been filed under Article 227 of the Constitution of India for quashing of order dated 22.12.2010, passed by learned Additional District Judge, Narnaul, being illegal, unjust, without cogent reasons and against the law.

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I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned Additional District Judge, Narnaul, vide which application for ad interim injunction filed by respondent no.1-plaintiff was allowed and the revision petitioner was restrained from raising any further construction over the suit land without partition, during pendency of the suit.

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Facts relevant for the decision of present revision petition are that the land in dispute alongwith some other land was jointly owned by both the respondents being real brothers. Out of the share, one of the respondent-brothers, i.e., respondent no.2 sold some land to the present petitioner and the present petitioner intends to raise construction over the same and hence, present suit was filed by respondent no.1-plaintiff seeking injunction against her that she should not interfere in the joint possession

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Civil Revision No.198 of 2011 (O&M)

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and should not raise any construction till the same is partitioned. The application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (hereinafter to be referred as the `Code') was dismissed by learned Additional Civil Judge, Senior Division, Narnaul and however, the same was allowed by learned appellate Court vide impugned order restraining the present petitioner for raising construction over the suit land till the same is partitioned.

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It has been contended by learned counsel for the revision petitioner that possession of specific partition, as per the sale-deed, was handed over to the petitioner by the vendor and hence, she is having right to raise construction over the same and that respondent no.1-plaintiff has no right to interfere in the same. It has also been contended that partition proceedings are also pending and even in the partition proceedings it was admitted by respondent no.1-plaintiff that parties are in possession as per their respective shares.

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However, prima facie, from the entries in the jamabandi, it is shown that the entire land including disputed Killa No.18/2/1 is in joint possession of both the brothers. Specific possession of Killa No.18/2/1 has not been shown of respondent no.2-vendor through whom the present petitioner claims right in property in dispute. Hence, when respondent no.2 is not shown to be in exclusive possession of the said killa number, he could not give specific possession of the same to the petitioner-vendee. Partition proceedings are still pending. Hence present petitioner cannot be permitted to raise construction pending the present suit and pending the partition proceedings so as to change the nature of the property in dispute and accordingly learned Additional District Judge, Narnaul, has restrained the present petitioner from raising construction over the suit land without partition during pendency of the present suit.

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In view of these facts, it cannot be said that any illegality or material irregularity has been committed by learned appellate Court in passing the impugned order, warranting interference by this Court.

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Law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face

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Civil Revision No.198 of 2011 (O&M)

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of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.

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Hence, the present revision petition is hereby dismissed being devoid of any merit.

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13.1.2011 meenu

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(Ram Chand Gupta) Judge

Sushila Devi v. Suraj Bhan etc.

Case brief

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Sushila Devi v. Suraj Bhan etc.

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