Punjab-Haryana High Court
Harmesh Chander Puri Son Of Walaiti Ram ... vs Jagdish Puri Son Of Walaiti Ram Son Of ... on 19 August, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.1319 of 2011 (O&M)
Date of decision: 19.08.2013
Harmesh Chander Puri son of Walaiti Ram son of Arjan Dass,
resident of C/o M/s Harmesh Chander Walaiti Ram, Cloth
Merchants, opposite Sat Kartar Telecom (Spice Showroom), Main
Bazar Moga, District Moga, and another.
...Petitioners.
versus
Jagdish Puri son of Walaiti Ram son of Arjan Dass, resident of
House No.1233W-27, Octroi Post No.10, Purana Moga, District
Moga.
....Respondent
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Avnish Mittal, Advocate,
for the petitioners.
Mr. Ashish Verma, Advocate,
for the respondent.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? No.
2. To be referred to the reporters or not ? No.
3. Whether the judgment should be reported in the digest ? No.
----
K.Kannan, J. (Oral)
1. The revision is at the instance of the defendants, who have been restrained from selling the properties and the defendants are aggrieved that the plaintiff himself has been permitted to sell the properties and the only condition imposed was that he must make a reference in any document that he may execute, regarding the Kumar Sanjeev 2013.08.23 10:08 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.1319 of 2011 (O&M) -2- pendency of the suit. The counsel's submission is that if the defendants could be restrained from selling the properties which are the subject matter of suit, the plaintiff must be also subjected to a similar restraint.
2. Some more facts are necessary to understand whether there was any justification for making a differential approach to the reliefs claimed by the respective parties. The plaintiff is the brother of the defendants. The plaintiff has filed the suit with reference to the properties which he claimed as the property of the father. There were two sets of defence: one at the instance of the first defendant, setting up a Will of the year 1984, said to have been executed by the father, disinheriting the plaintiff and another at the instance of defendants 2 and 3, who set up another Will, said to have been executed in the year 1967. In both the Wills, the plaintiff has been disinherited. The defendants 2 and 3 also made counter claim that even apart from the properties described in the plaint, there are two other items of properties left out of the plaint, namely, property in Khasra No.153 and the property in Khasra No.144, an extent of 61 marlas, in which the plaintiff claims exclusive right to a share and it is the contention of the defendants 2 and 3 that they also form part of the estate of the father and hence made the subject of bequest. According to the plaintiff, he has excluded these two items since they never belonged to the father and they had been purchased by Kumar Sanjeev 2013.08.23 10:08 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.1319 of 2011 (O&M) -3- the plaintiff in his own name and that mutations had also been made in his name subsequent to his purchase. The defendants have contended that the vendor in the plaintiff's purchase had actually taken forcible possession of the said property from the family and the plaintiff was clever enough to purchase the property in his name although the property belonged to the family even earlier.
3. At the time when the Court passes an interim order, it is invariably on a consideration of a prima facie claim to title and/or possession. If there is a document of sale in favour of the plaintiff and the plaintiff himself has excluded the said items from suit, it is fair enough for the Court to assume that he has prima facie case, that he shall have the right also to sell the property but having regard to the fact that the defendants were staking claim in respect of these items through counter claim, it has directed that in the event of any sale, the reference to the pendency of the suit shall be made. This was truly a special circumstance which was applicable in the plaintiff's own case. As regards the plaintiff's case to 1/7th share, admittedly, all the properties described in the plaint were the properties of the father as belonging to his estate. The proof of the two rival Wills was still a matter to be considered and the genuineness of the Wills can never be presumed till it is actually proved. The same yardstick need not be applied to the sale deed standing in the name of a particular person. If the Court was, Kumar Sanjeev 2013.08.23 10:08 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.1319 of 2011 (O&M) -4- therefore, causing a restraint against alienation of the defendants' right in the property where the plaintiff had a prima facie case, I will not find that there was a justification for the Court to cause such a restraint against the plaintiff as regards the property purchased by him and which was not prima facie a part of the estate of the father. I find no reason to modify the order passed by the court below. The civil revision is dismissed.
4. The case is of the year 2008 and the counsel states that there could be a direction for expeditious disposal. A request may be made by the parties before the trial Court and the Court will consider the manner of its disposal depending on its own case load.
(K.KANNAN) JUDGE 19.08.2013 sanjeev Kumar Sanjeev 2013.08.23 10:08 I attest to the accuracy and integrity of this document chandigarh