Dismissed

Gurmukh Singh v. Kamla Devi & Ors.

Punjab & Haryana HC20 Jan 2011CR/2597/2010

Case brief

AI extract

What is this about?

This division dismissed a civil revision petition challenging orders refusing ad-interim injunction in a partition suit. The petitioner, alleging co-sharer status, failed to prove exclusive possession of disputed land, failing to satisfy the test for interim relief.

What did the court decide?

Petitioner's application for ad-interim injunction dismissed and revision petition dismissed.

Gurmukh Singh Vs Kamla Devi & Ors. — Property and Title | Punjab & Haryana HC (2011)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 2597 of 2010(O&M) Date of Decision: January 20, 2011.

Gurmukh Singh

...... PETITIONER(s)

Versus

Kamla Devi and others.

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...... RESPONDENT (s)

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CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA

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Present: Mr. R.S.Longia, Advocate for the petitioner. Mr. Roopak Bansal, Advocate for respondent No.1. Mr. K.S.Dhanora, Advocate for respondent No.2.

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RAM CHAND GUPTA, J.(Oral)

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The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 18.11.2008, Annexure P3 passed by learned trial Court as well as order dated 10.03.2010, Annexure P4 passed by learned appellate Court, dismissing the application filed by petitioner-plaintiff for ad-interim injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short ‘CPC’).

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CR No.2597 of 2010

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I have heard learned counsel for the parties and have gone through the whole record including the impugned orders passed by learned trial Court as well as learned appellate Court.

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Brief facts relevant for the decision of the present revision petition are that, the present petitioner-plaintiff filed a suit for declaration for permanent injunction alongwith the application under Order 39 Rules 1 and 2 CPC for ad-interim injunction on the averments that he alongwith respondents No.2 to 5-defendants is co-sharer in the total land measuring 48 Kanals 2 Marlas and the share of the petitioner-plaintiff was 249/990. There was a dispute relating to possession as per the share and hence, a Panchayat was held and the land of all co-sharers was partitioned. According to the partition, the land in Khasra No.25/24 came in the share of present petitionerplaintiff. It was also pleaded that all the co-sharers got possession in terms of the said partition effected in the Panchayat and since then they are continuing in possession over the land according to their respective shares. It is further averred that Karan Singh-defendant No.2 had sold the land measuring two Kanals, 40/9201 share of the total land 460 Kanals 1 Marla to respondent No.1-defendant No.1 and however, mentioning specific Khasra No.25/24 in the sale deed is illegal as in the partition he was given possession of land measuring 9 Kanals 14 Marlas in Khasra Nos.26/24, 26/23 and 26/12. Hence, plea has been taken that respondents-defendants have no right in Khasra No.25/24 and hence, it was contended that petitioner-plaintiff be declared as owner in possession of the said Khasra number with further prayer to restrain the defendants from interfering in the possession of the petitioner-plaintiff over the land in the said Khasra numbers. Defendants

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CR No.2597 of 2010

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No.2 to 4 and 6 being related to petitioner-plaintiff supported the claim of petitioner-plaintiff. However, defendant No.1- Kamla Devi, who filed written statement as well as reply to the application taking the plea that as per the sale deed, respondent No.2-Karan Singh had sold the land measuring 2 Kanals to her with specific Khasra No.25/24 and that possession of specific portion of the said Khasra number was also given to her as per the sale deed. It was denied that there was any Panchayati partition between petitionerplaintiff and defendants No.2 to 4 and 6 rather plea has been taken that she is a bonafide purchaser for consideration and she had become exclusive owner in possession over specific portion of the land in Khasra No.25/24 from the date of sale of the said land to her. Learned trial Court after hearing both the parties decided the application for ad-interim injunction filed by the petitioner-plaintiff under Order 39 Rules 1 and 2 CPC vide impugned order Annexure P3, vide which the same was dismissed by observing that no prima facie case in favour of petitioner-plaintiff is made out as he has failed to show that he was in exclusive possession of the disputed Khasra numbers. Petitioner-plaintiff filed appeal against the said order passed by learned trial Court however, learned District Judge, Kurukshetra dismissed the said appeal as well vide order, Annexure P4.

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It has been contended by learned counsel for the petitionerplaintiff that the partition between all the co-shares was effected about four years ago and that parties have been continuing in possession as per their respective shares and that Khasra No.25/24 came to the share of the present petitioner-plaintiff and it continued to be in his possession. It is further contended that he is having right to protect his exclusive possession of

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CR No.2597 of 2010

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Khasra No.25/24 even though the partition has not been given effect to by the revenue authorities. On the point he has placed reliance upon Tanusree Basu and others v. Ishani Prasad Basu and others, 2008(3), RCR(Civil) 519 , Bhagwati Prasad v. Ushadevi and others, AIR 1995(MP) 205 , Ram Chander v. Bhim Singh and others, 2008(3) RCR(Civil) 685 , M/s DCM Shriram Consolidated Ltd. v. Jai Singh , 2006(2) RCR(Civil) 118 and Maman Chand v. Kamla, 1996(2) PLR 147 .

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On the other hand, learned counsel for the contesting respondent-defendant No.1 contended that petitioner-plaintiff has colluded with his brother, respondent No.2, who executed sale deed in favour of respondent No.1-defendant No.1 and Panchayati/private partition has been set up by them in collusion with each other just to defeat the right of respondent No.1. It is further contended that as per sale deed specific Khasra No.25/24 was sold to respondent No.1-defendant No.1 by respondent No.2defendant No.2, Karan Singh and she has also taken possession from him on the date of execution of sale deed and that hence, she is in exclusive owner in possession of the said Khasra number being a bonafide purchaser for consideration.

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Law is well settled that at this stage, prima facie case, balance of convenience and the fact that as to whether irreparable loss would be caused to the petitioner-plaintiff if ad-interim injunction is not granted, are to be seen. Learned trial Court as well as learned appellate Court while exercising their discretion came to the conclusion that petitioner-plaintiff failed to show prima-facie case in his favour and balance of convenience is also does not lie in his favour and an irreparable loss would not be caused to him if ad-interim

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CR No.2597 of 2010

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injunction is not granted. As per own case of petitioner-plaintiff the alleged Panchayati/private partition has not been given effect to by the revenue authorities as none of the parties has filed any petition regarding partition of joint land of the parties by metes and bounds. As per the entries in Jamabandi and Khasra Girdawari all the parties have been recorded as coowners of the suit land and this fact has not been disputed by either of the parties. Sale deed is regarding specific Khasra No.25/24 and it has also been recited that possession of the said khasra number was handed over to respondent No.1-defendant No.1. However, it was for the petitioner-plaintiff to show to the Court that he is in exclusive possession of Khasra No.25/24 in order to succeed in his plea that he is entitled for ad-interim injunction order during pendency of the suit. However, it has been observed by learned trial Court that he has not placed on record copy of Khasra Girdawari showing exclusive possession. However, at the time of arguments before this Court, counsel for petitioners has taken the plea that all the parties are recorded as joint owner in joint possession of the Khasra number in dispute as the entire land has not been partitioned by metes and bounds. There is no dispute that land measuring two Kanals was sold by respondent No.2, who is brother of present petitioner-plaintiff to respondent No.1-defendant No.1. Hence, even if it is taken that respondent No.1 has not been shown in the revenue record to be in exclusive possession of Khasra No.25/24 then, as per the recital in the sale deed he has been given possession of the same. Petitioner-plaintiff has to stand on his own legs and in order to succeed in his request for adinterim injunction, he has to show that he is in exclusive possession of Khasra number in dispute. Petitioner-plaintiff alongwith respondents No.2 to

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CR No.2597 of 2010

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5 was in joint possession and joint owner of the entire land including the Khasra number in dispute. It has been rightly observed by both the courts below that respondent No.1 is having no right to seek injunction against another co-owner in view of law settled by Full Bench of this Court in Ram Chander v. Bhim Singh and others , 2008(3) RCR (Civil) 685 .

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Law has been well settled in Surya Dev Rai v. Ram Chander Rai and others, 2004(1) RCR (Civil) 147 by Hon’ble Apex Court that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction of this Court. This Court can interfere only when the error is manifest and apparent on the face 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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In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court as well as by learned appellate Court in passing the impugned orders dated 18.11.2008 and 10.03.2010 or grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

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There is no merit in the present revision petition. The same is, hereby, dismissed.

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January 20, 2011. 'om'

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( RAM CHAND GUPTA ) JUDGE

Gurmukh Singh v. Kamla Devi & Ors.

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Gurmukh Singh v. Kamla Devi & Ors.

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