Punjab-Haryana High Court
Pawan And Another vs Smt. Maya Devi And Others on 18 September, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CR No.6242 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.6242 of 2011 (O & M)
Date of Decision:18.09.2013.
Pawan and another
....Petitioners
Versus
Smt. Maya Devi and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
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. Sandeep Kotla, Advocate,
for the petitioners.
Mr. Shailender Jain, Advocate,
for respondents no.1 and 2.
****
PARAMJEET SINGH, J. (Oral)
Instant civil revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 26.05.2011 passed by learned Civil Judge (Jr. Divn.), Gurgaon whereby application filed by respondents no.1 and 2-plaintiffs under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (in short "the CPC") has been allowed and the order dated 12.09.2011 passed by Kumar Parveen 2013.09.20 17:10 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.6242 of 2011 2 learned Additional District Judge, Gurgaon whereby appeal preferred by the petitioners-defendants no.1 and 2 against the order dated 26.5.2011 has been dismissed.
Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that the plaintiffs being co-owners of disputed land filed suit for permanent injunction against defendants no.1 and 2 and others specifically alleging that the land in dispute has not been partitioned by metes and bounds and defendants no.1 and 2 want to change the nature of the land in dispute by raising unauthorized construction which would cause irreparable loss to the plaintiffs. Along with suit, application under Order 39 Rules 1 and 2 CPC for temporary injunction was also filed. The trial Court after considering the material on record allowed the temporary injunction application moved by the plaintiffs vide impugned order dated 26.05.2011. Feeling aggrieved with the order dated 26.05.2011, defendants no.1 and 2 preferred appeal before learned Additional District Judge, Gurgaon which has been dismissed vide impugned order dated 12.09.2011. Hence, this revision petition.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioners vehemently contends that defendants no.1 and 2 are co-sharers in the land in dispute and no injunction can be granted against a co-sharer. There are number of houses constructed in the other part of the land in dispute. In support of his contentions, learned counsel relies upon Maharwal Khewaji Trust Kumar Parveen 2013.09.20 17:10 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.6242 of 2011 3 (Regd.), Faridkot v. Baldev Dass 2004 4) R.C.R.(Civil) 760 and Balkar Singh and others v. Kehar Singh and others 2007 (3) R.C.R. (Civil) 443.
Per contra, learned counsel for respondents no.1 and 2 contends that land in dispute has not been partitioned by metes and bounds and is still joint. Even in the revenue record, all the co-sharers have been recorded in possession in the land in dispute. Since defendants no.1 and 2 are not in exclusive possession in the land in dispute, they cannot change the nature of the land in dispute which will affect the rights of plaintiffs and for this, they cannot be compensated in terms of costs, rather irreparable loss is being caused to them. In support of his contention, learned counsel relies upon Maharwal Khewaji Trust (Regd.), Faridkot (supra), Rishal Singh and others vs. Shri Bhagwan and another Vol. CXL VI (2007-2) The Punjab Law Reporter 325, Ram Niwas vs. Jai Ram alias Tej Ram 2000 (3) R.C.R. (civil) 738, Budh Singh and others vs. Balbir Singh 2010 (2) R.C.R.(Civil) 613, Balbir Singh vs. Lamber Singh 2004 (3) Civil Court Cases 129, Pritam Singh and others vs. Chanan Singh and others 2003 (1) Civil Court Cases 426, Chander Shekhar and others vs. Des Raj and others 1990 (1) R.R.R 134, Banarsi Dass vs. Kaur Sain 1992 (2) R.R.R 233 and Bhanwara Ram and others vs. Pritam Singh and others 2000 (2) Civil Court Cases 574.
I have considered the rival contentions of learned counsel for the parties.
At the outset, it would be appropriate to mention here that the Kumar Parveen 2013.09.20 17:10 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.6242 of 2011 4 plaintiffs are owners in possession in the portion which they have purchased from Chander Singh, who had been gifted the same from Dhanni, who was owner in possession. The possession of plaintiffs in the land in dispute is for more than 10 years and prior to same, their predecessors-in-interest were owners in possession. Be that as it may, the revenue records indicate that the land in dispute is still joint and the possession has been shown of all the co-owners. The case law Balkar Singh and others (supra) is distinguishable to the facts of the present case, because in that case, the construction had already been raised upto roof level and only plastering of walls, fixing of wooden doors and flooring had to be done. So far as the case law Maharwal Khewaji Trust (Regd.), Faridkot (supra) is concerned, in that case the temporary injunction was sought for restraining the defendants from alienating and changing the nature of the suit property and it was observed that the temporary injunction must be granted unless an irreparable loss is shown by the defendant likely to be caused to him by grant of temporary injunction. Since there are averments in the application under Order 39 Rules 1 and 2 CPC to the effect that the petitioners are trying to change the nature of the suit property and both the courts below after appreciating the material on record have come to the conclusion that the plaintiffs are entitled to interim injunction, I do not find any illegality or perversity in the impugned orders. Moreover, the Hon'ble Supreme Court in Mohd. Mehtab Khan vs. Khushmima Ibrahim 2013 (2) RCR (Civil) 295 has held that order of the courts below cannot be lightly set aside as long as the view of the trial Court is Kumar Parveen 2013.09.20 17:10 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.6242 of 2011 5 a possible view.
Dismissed.
Anything said hereinabove will not affect the merits of the case.
(Paramjeet Singh) Judge September 18, 2013 parveen kumar Kumar Parveen 2013.09.20 17:10 I attest to the accuracy and integrity of this document High Court, Chandigarh