Punjab-Haryana High Court
Jagan Nath vs Amarjit Singh And Ors on 26 November, 2014
CR No. 7971 of 2014 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR No. 7971 of 2014
Date of Decision : 26.11.2014
Jagan Nath ....Petitioner
Versus
Amarjit Singh and others ...Respondents
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Present: Mr. D.V. Sharma, Senior Advocate with
Ms. Shivani Sharma, Advocate
for the petitioner.
R.P. Nagrath, J.
The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India seeking to set aside the order dated 03.11.2014 (Annexure P-6) passed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (CPC) during pendency of the appeal, declining the prayer for grant of temporary injunction.
2. The petitioner filed civil suit no. 303 of 2004 against the respondents for possession by way of separation of his 1/10th share in the suit property, which was dismissed by the trial Court on 15.02.2014. The petitioner preferred appeal against the judgment and decree, during pendency of which the petitioner made a prayer for ad-interim injunction.
JITENDER KUMAR 2014.12.01 16:49 I attest to the accuracy and authenticity of this document Chandigarh CR No. 7971 of 2014 -2-
3. It was stated by the petitioner in his application under Order XXXIX Rules 1 and 2 CPC that he is in possession of the shop which he purchased from one of the co-sharer vide sale deed dated 04.11.2003. His possession over the said shop was admitted. The respondents were trying to dispossess the petitioner from this shop taking advantage of the judgment and decree under challenge
4. The facts would reveal that respondents no. 1 and 2 as heirs of Sohan Singh had filed a separate civil suit no. 217 of 2004 on 31.07.2004 seeking possession by way of ejectment of the petitioner from the shops in question. The shop was taken on rent by the petitioner from Sohan Singh, predecessor of respondents. Sohan Singh was original owner of the property admittedly. Respondents no. 1 and 2 pleaded in the said suit that the shop in question has fallen to their share on the death of Sohan Singh.
5. The petitioner had set up the defence that the eastern shop exists in khasra no. 180/1 and the same was constructed by Charanjit Singh the brother of respondents no. 1 and 2. It was further pleaded that petitioner has become the co-sharer in the khasra no. 180/2 to the extent of 5½ sarsahis having purchased the same from Charanjit Singh vide sale deed dated 04.11.2003. The ejectment suit was decreed on 08.06.2011. The petitioner preferred an appeal against the aforesaid judgment and decree which was dismissed on 21.10.2013. Regular Second Appeal (RSA) filed in this Court was also dismissed on 22.08.2014. JITENDER KUMAR 2014.12.01 16:49 I attest to the accuracy and authenticity of this document Chandigarh CR No. 7971 of 2014 -3-
6. It was thus contended that the petitioner has concealed the aforesaid facts and tried to obtain ex parte status quo order in his application under Order XXXIX Rules 1 and 2 CPC. That status quo order was misused by the petitioner in the execution proceedings pending before the executing court with regard to the decree of ejectment dated 08.06.2011 (Annexure P-2). The respondents contended before the appellate Court that under the garb of said application the intention of the petitioner is in fact to get the stay of execution proceedings.
7. I have heard learned counsel for the petitioner and perused the impugned order and the paper-book and find that learned appellate Court has taken the relevant facts into consideration while declining the prayer and that view is not shown to be illegal or perverse. In view of the facts apparent on record, the lower appellate Court has rightly observed that the above material facts were not disclosed by the petitioner in his application for seeking ad-interim injunction at the first instance.
8. The sale deed which the petitioner obtained from one of the co-sharers dated 04.11.2003 is Annexure P-1. Vide this sale deed the petitioner purchased 1 kanal 1 marla 5½ sarsahis out of 10 kanals 16 marlas of the land of various khasra numbers being 1/10th share from Charanjit Singh son of Sohan Singh. There is no indication in the sale deed that it also pertains to the shops in question. The aforesaid controversy has since been settled in the judgment in Civil Suit no. 217 of 2004 which has attained finality. JITENDER KUMAR 2014.12.01 16:49 I attest to the accuracy and authenticity of this document Chandigarh CR No. 7971 of 2014 -4- In fact the petitioner intends to force upon partition of the joint property amongst co-sharers on the basis of his sale deed which is impermissible. The petitioner has in fact, no escape route except to surrender possession of the shops in question in compliance with judgment and decree lawfully passed against him and may then have remedy to claim partition by metes and bounds in case it was not already settled amongst the original co-sharers No merit. Dismissed.
November 26, 2014 ( R.P. NAGRATH )
jk JUDGE
JITENDER KUMAR
2014.12.01 16:49
I attest to the accuracy and
authenticity of this document
Chandigarh