Punjab-Haryana High Court
Karamjit Kaur vs Jasmer Singh & Ors on 27 November, 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Civil Revision No. 5308 of 2012
DATE OF DECISION : November 27, 2013
KARAMJIT KAUR
.......PETITIONER
VERSUS
JASMER SINGH & ORS.
.... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE S. P. BANGARH
...
Present: Mr. Pankaj Bali, Advocate, for the petitioner.
Mr. Brijender Kaushik, Advocate, for respondent No.1.
Service upon respondent No.2 dispensed with.
Proforma respondents Nos.3 & 4 ex-parte.
S. P. BANGARH, J.
Claiming himself to be in possession of the suit house, more fully described in the plaint, as owner, thereof, on the basis of sale deed No.454 dated 5.6.1998, executed by the respondents Nos.3 and 4 and Smt.Daljit Kaur, that had a basement beneath the rooms, kitchen and Verandah, the respondent No.1, herein, filed Civil Suit No. 305 of 2011 before the trial Court, for declaration and permanent injunction seeking to restrain the petitioner and respondents Nos.2 to 4, herein, from usurping the same, as the latter made an abortive attempt to do so.
Petitioner and respondents Nos.3 and 4, in their joint written statement, averred that respondent No.2, herein, sold the Kang Gursharan Singh 2013.12.04 16:13 I am the author of this document Chandigarh Civil Revision No. 5308 of 2012 2 house in question vide sale deed No.454 dated 5.6.1998, except basement (bhora, in the local parlance). The way to the basement is only from their house, that was exclusively owned by them and the respondent No.1, herein, has no right, therein. It was reiterated that by way of sale deed (supra), no right was given to the respondent No.1 to enter the basement. It was claimed that, they being owners, had right of user of basement. No permission was ever obtained by the respondent No.1 from the competent authority for construction of the sold portion. Therefore, he was not entitled to raise construction. Consequently, prayer for dismissal of the suit was, thus, made.
Name of respondent No.3, who was defendant No.2 before the trial Court, was deleted from the array of defendants at the instance of the respondent No.1.
Along with the suit, the respondent No.1, herein, filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, read with Section 151 of the Code of Civil Procedure, averring, therein, that, prima facie, case and balance of convenience are in his favour and that he shall suffer an irreparable loss and injury by refusal of temporary injunction, till the disposal of the main suit. Consequently, prayer for acceptance of the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, was, thus, made.
Application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, was opposed by the petitioner and respondents Nos.3 and 4 by filing written reply, thereto, averring, therein, that, prima facie, case and balance of Kang Gursharan Singh 2013.12.04 16:13 I am the author of this document Chandigarh Civil Revision No. 5308 of 2012 3 convenience are not in favour of the respondent No.1, who shall manifestly not suffer an irreparable loss and injury by refusal of temporary injunction, till the disposal of the main suit. Consequently, prayer for dismissal of the application was, thus, made.
After hearing both the sides, the trial Court, vide order dated 4.2.2012 (Annexure P-4), dismissed the application.
Aggrieved against the same, the respondent No.1, herein, filed Civil Miscellaneous Appeal No.9 of 2012 before the Ist Additional District Judge, Kurukshetra, that was allowed and the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, of the respondent No.1, herein, was also accepted and the petitioner and respondents Nos.3 and 4 were restrained from interfering into the portion beneath the suit house in any manner, till the decision of the suit.
Aggrieved against the same, the petitioner, who is defendant No.1 before the trial Court, has come up in this revision petition, with prayer for acceptance, thereof, and for dismissal of the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, of the respondent No.1, and for restoration of the order dated 4.2.2012, of the trial Court, whereby, the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, of the respondent No.1, herein, was dismissed.
Learned counsel for the petitioner contended that the Ist appellate Court completely erred in not considering the facts and documentary evidence present on the case file, that the Kang Gursharan Singh 2013.12.04 16:13 I am the author of this document Chandigarh Civil Revision No. 5308 of 2012 4 respondent No.4, herein, had sold House No.344, Ward No.3, within Sikh Fort, Shahabad Markanda, District Kurukshetra, consisting of two rooms, kitchen and Verandah, vide sale deed No.454 dated 5.6.1998. So, he contended that the basement (bhora) in question was not sold to the respondent No.1, nor it could be sold, because there is no way from the sold portion of the house to the basement for ingress and outgress. So, he contended that the basement is exclusively owned by the petitioner and proforma respondents and respondent No.1 has no right, interest or title, therein, and, therefore, present revision petition may be allowed and the order of the trial Court may be restored by accepting this revision and the impugned order of the Ist appellate Court may be set aside.
On the other hand, learned counsel for the respondent No.1 contended that there is a recital in the sale deed regarding sale of the basement, which has been written as 'Tehti', which means 'underground'.
Thoughtful consideration has been given to the contentions raised by the learned counsel for the parties.
There is no gainsaying about the sale deed dated 5.6.1998 regarding the house in question. The only point that arises for consideration is as to whether the basement is a part of the suit house, that has been sold vide sale deed (ibid) to the respondent No.1 by its vendors. The sale deed, on the face of it, cannot be held to be illegal. There is a recital in this sale deed that the underground portion (Tehti, in the local parlance) of the house was also sold to the respondent No.1. So, by virtue of Kang Gursharan Singh 2013.12.04 16:13 I am the author of this document Chandigarh Civil Revision No. 5308 of 2012 5 this recital in the admitted sale deed, the disputed basement (bhora) is a part of the sale deed and that was sold to the respondent No.1.
The Court below rightly held that when the sale deed is specific about the land underneath, there is hardly any scope of dispute with regard to the basement (bhora) that would go with the land above it. The Court below further rightly held that merely because the entry in the bhora is from the house of the petitioner and respondents Nos.2 to 4, has no significance, especially, when the suit house has been sold.
Keeping in view the recital in the sale deed regarding sale of the basement underneath the house sold to the respondent No.1, he, prima facie, must be held to be its owner and occupier, thereof, and the petitioner and respondents Nos.2 to 4 cannot be permitted to interfere, therein, illegally, forcibly and without due process of law. Keeping in view the recital in the sale deed, regarding sale of the basement of the house in question to the respondent No.1, balance of convenience also lies in his favour and he shall manifestly suffer an irreparable loss and injury, if the petitioner and respondents Nos.2 to 4 are not restrained from interfering, therein, illegally, forcibly and without due process of law.
The Ist appellate Court rightly restrained the petitioner and respondents Nos.2 to 4 from interfering in the basement (bhora) illegally, forcibly and without due process of law. There is, thus, no illegality or impropriety in the impugned judgment and, thereby, the order of the trial Court, whereby, Kang Gursharan Singh 2013.12.04 16:13 I am the author of this document Chandigarh Civil Revision No. 5308 of 2012 6 the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, of the respondent No.1, was dismissed, was rightly set aside by the Ist appellate Court.
There is, thus, no illegality or impropriety in the impugned order, that is, hereby, upheld and affirmed.
Resultantly, the revision petition fails and is, hereby, dismissed, with no order as to costs, sans prejudice to the merits of the main suit.
November 27, 2013 ( S. P. BANGARH )
Kang JUDGE
Kang Gursharan Singh
2013.12.04 16:13
I am the author of this
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Chandigarh