Dismissed

Bijender and Another v. Pawan and Another

Punjab & Haryana HC24 Apr 2023CR/2410/2023

Case brief

AI extract

What is this about?

In this revision petition, the High Court dismissed the appeal against the trial Court's order granting an interim injunction and the appellate Court's decision upholding it. The Court held that the trial Court correctly found evidence of ownership and that the factors for interim injunction favored the plaintiff.

What did the court decide?

Revision petition dismissed; interim injunction order allowed and upheld.

Bijender and Another Vs Pawan and Another — Property and Title | Punjab & Haryana HC (2023)

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2023:PHHC:057942 Page 1 of 5

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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113 CR-2410-2023 (O&M) Date of decision: 24.04.2023

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Bijender & Another

...Pe//oner(s)

Vs.

Pawan & Another

...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Argued By:Mr. Abhimanyu Singh, Advocate for the pe��oners. ***

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NIDHI GUPTA, J.

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Present Revision Pe��on has been filed by the pe��oners/defendants seeking se%ng aside of order dated 20.09.2021 (Annexure P4) passed by learned Addi�onal Civil Judge (Senior Division), Bhiwani whereby applica�on filed by respondent No.1/plain�ff under Order 39 Rules 1 & 2 read with Sec�on 151 of the Code of Civil Procedure, 1908 (hereina9er referred to as “the CPC”), has been allowed; as well as order dated 28.03.2023 (Annexure P6) passed by learned Addi�onal District Judge, Bhiwani whereby appeal preferred by the pe��oners/defendants against abovesaid order dated 20.9.2021, has been dismissed.

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Learned counsel for the pe��oners/defendants inter

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alia, submits:

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i) that by his own admission, respondent No.1/plain�ff is owner of property bearing MC Unit No.S-379 measuring 169 square yards situated near Old Bus Stand, Gujron Ki Dhani, Tehsil & District Bhiwani, SUNENA whereas pe��oners/defendants along with others are owner of MC Unit 2023.05.02 11:19 I attest to the accuracy and integrity of this document

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2023:PHHC:057942 Page 2 of 5

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No.S-378 measuring 42 square yards situated in western side of the property of respondent No.1/plain�ff;

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ii) that it is the allega�on of respondent No.1/plain�ff against the pe��oners/defendants that they have exceeded the land in their ownership and constructed their house in about 300 square yards by illegally encroaching upon the land of Municipal Council/defendant No.3/respondent No.2 herein;

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iii) that accordingly, plain�ff filed present Civil Suit (Annexure P-1), seeking permanent and mandatory injunc�on against the pe��oners restraining them from causing any interference or raising any construc�on over the por�on as described in headnote of the plaint. The pe��oners/defendants duly appeared before the learned trial Court and filed wriFen statement dated 21.10.2021 (Annexure P2) submi%ng therein that property bearing MC Unit No.S-378 consisted of 245 square yards and was owned and possessed by predecessor-in-interest of the pe��oners/defendants and therefore, there was no illegal encroachment on the part of the pe��oners/defendants;

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iv) that along with his Civil Suit, respondent No.1/plain�ff had also filed an applica�on under Order 39 Rules 1 & 2 CPC seeking at interim injunc�on against the pe��oners/defendants for restraining them from causing any interference or raising any construc�on in peaceful possession of respondent No.1/plain�ff over suit land �ll final decision of the case. It is submiFed that it is this applica�on which has been

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SUNENA 2023.05.02 11:19 I attest to the accuracy and integrity of this document

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2023:PHHC:057942 Page 3 of 5

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allowed by the learned trial Court, and upheld by the learned Lower Appellate Court vide the impugned orders;

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v) that learned trial Court has failed to appreciate correct posi�on on land and has allowed the said applica�on of respondent No.1/plain�ff on incorrect premises as:

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a) respondent No.2/defendant No.3/Municipal Council has categorically stated in its reply to the Civil Suit that “according to record of answering defendant the property MC Unit No.S-378 consists of 245 square yards area.” Accordingly, learned trial Court was wrong in allowing the applica�on of respondent No.1/plain�ff for ad interim injunc�on, and learned lower Appellate Court has also erred in upholding the said order.

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No other argument is raised on behalf of the pe��oners.

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I have heard learned counsel for the pe��oners.

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Perusal of record of the case shows that no doubt, it has been stated by respondent No.2/defendant No.3/Municipal Council that MC Unit No.378 measured 245 square yards. However, the learned trial Court has recorded the following findings in this respect in impugned order dated 20.9.2021:-

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“6….Though defendant no.3 in its wri&en statement has submi&ed that area of MC Unit No.S-378 is 245 Sq. Yards but at the *me of arguments, learned counsel for defendant no.3 appeared in person and has specifically stated that it is a wrong record and actual area of MC Unit No.S-378 is only 42 Sq. Yards and the changing of area of said unit (sic) in register is done by concerned clerk without any authority and even

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SUNENA 2023.05.02 11:19 I attest to the accuracy and integrity of this document

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2023:PHHC:057942 Page 4 of 5

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department has recommended against concerned employee for forging public record. The defendants no. 1 and 2 have submi&ed forged record. From these circumstances, it is clear that the contenon of defendants is not bonafide. It seems that false record is brought before this court with an intenon to grab adjacent land more than 42 Sq. Yards.

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7. The main plea of defendants is that the plainff has only produced copy of assessment register which is admi&edly not proof of ownership and therefore plainff is not owner of suit land and is not entled to get any injuncon. In this regard, it is to be noted that suit land is situated within Municipal Commi&ee, Bhiwani and admi&edly no record by any department regarding ownership of this land is being maintained at present. The plainff has tendered copy of assessment register wherein name of his grandfather is recorded. This shows that tax for MC Unit No. S-379 measuring 169 Sq. Yards is being paid by plainff since long. Hence, the rights of plainff over suit is prima facie proved. None of defendants has claimed any right or tle over MC Unit No.S379 in any manner or disputed area of same. The documents tendered by plainff are admi&ed by defendant no.3 to the effect that forefather of plainff are paying property tax of suit land since long. The plainff has produced the best available evidence with him regarding his right over suit land. No other party is claiming his right of ownership or possession over suit land in any manner. Hence, a prima facie case is made out and balance of convenience also lt in his favour. Any encroachment by defendant over area of suit land by raising any construcon will cause irreparable loss to plainff if he would be successful in his case tomorrow. On the other hand, restraining the defendants to raise construcon over area more than 42 sq. yards of MC Unit No.S-378 will not cause any prejudice to him rather it will amount as protecng suit land as

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SUNENA 2023.05.02 11:19 I attest to the accuracy and integrity of this document

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2023:PHHC:057942 Page 5 of 5

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well as land of Municipal Commi&ee. Admi&edly there is common chowk adjacent to suit land which is a public property. The court is guardian of public property and any encroachment over same should be curbed with string hands.”

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Learned counsel for the pe��oners is unable to controvert or give any explana�on for the above said findings of the learned trial Court.

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It has also come on record that par�es to the present proceedings had constructed their respec�ve houses a long �me ago and there existed some vacant space between the houses of plain�ff and pe��oners, which is used by plain�ff to park his vehicle. It is this open space which is being stated to be encroached upon by the pe��oners. In an applica�on for interim injunc�on, the Court is called upon to consider three factors - prima facie case, balance of convenience and irreparable loss and injury. In the present case, in view of the facts as no�ced above, all three factors are in favour of the plain�ff.

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Accordingly, I find no error in the interim injunc�on as granted by the learned trial Court, and upheld by the learned Lower Appellate Court. No interference of this Court is called for. Present Revision Pe��on is dismissed.

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Pending applica�on(s) if any also stand(s) disposed of.

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Sunena 24.04.2023

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(Nidhi Gupta) Judge

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Whether speaking/reasoned: Yes/No Whether reportable: Yes/No

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SUNENA 2023.05.02 11:19 I attest to the accuracy and integrity of this document

Bijender and Another v. Pawan and Another

Case brief

What is this about?

What did the court decide?

Bijender and Another v. Pawan and Another

Case brief

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What did the court decide?

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