Punjab-Haryana High Court
Mohinder Kaur And Others vs Mohinder Singh And Others on 8 November, 2011
Civil Revision No. 6654 of 2011 1
..
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No. 6654 of 2011 (O&M)
Date of Decision: November 8th , 2011
Mohinder Kaur and others
.... Petitioners
Versus
Mohinder Singh and others .. Respondents
CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present Mr. Arun Jain, Senior Advocate with
Mr. Vishal Garg, Advocate,
for the petitioners.
Mr. Rajesh K. Dadwal, Advocate,
for the caveator-respondents.
VIJENDER SINGH MALIK, J.
Some of the plaintiffs, Mohinder Kaur and three others, have brought this revision petition under the provisions of Article 227 of the Constitution of India for setting aside the order dated 12.10.2011 passed by Additional District Judge, Hoshiarpur, vide which the order dated 28.8.2011 passed by Additional Civil Judge (Senior Division), Hoshiarpur dismissing the application of the plaintiffs under Order 39 Rules 1 and 2 CPC, has been upheld.
Kesho Ram and 17 others, grouping together, took land measuring 2 kanals 11 marlas from its owners for raising construction of a building and running a cinema hall therein. In the course of time, the landlords/respondents filed an application for ejectment of Kesho Ram Civil Revision No. 6654 of 2011 2 ..
and others from the said land bearing khasra Nos. 105/1 and 105/2, situated at Railway Road, Hoshiarpur after removal of the construction raised thereon. The said application was allowed by the Rent Controller vide order dated 28.2.1987. The first appeal and the Regular Second Appeal also could not bring any relief to the tenants. After the said order had become final, the landlords sought to execute the order of ejectment and in the first round of litigation, the petitioners before me, brought objections to the execution of the ejectment order. The said objections were dismissed by the executing court. The appeal filed by the petitioners also brought no succour to them and finally the revision petition carried to this Court also ended in dismissal vide judgment dated 19.5.2010.
Surinder Pal Singh, predecessor of the petitioners had purchased some share in the goods attached and put to auction relating to the cinema hall, for which sale certificate was issued to them on 27.3.2002. Said Surinder Pal Singh had also purchased a share measuring 5 marlas 1 sarsahi in the land in question measuring 2 kanals 11 marlas from Smt. Gurnam Kaur, vide sale deed dated 19.8.1998. Becoming a co-sharer in this manner, the petitioners filed a suit for separate possession of land measuring 5 marlas 1 sarsahi out of the suit land and in that suit filed an application under Order 39 Rules 1 and 2 CPC for ad interim injunction restraining the defendants from dispossessing them from the suit property as also from demolishing the super structure during the pendency of the suit. They had pleaded the aforesaid facts in their plaint and had claimed themselves to be in possession of the suit property as co-sharers and had sought the Civil Revision No. 6654 of 2011 3 ..
aforesaid relief.
The application for ad interim injunction had been resisted by some of the defendants. They have claimed that the super structure was raised by Kasho Ram and others and the machinery was installed by them and that they were the tenants who were ordered to be ejected from the suit property by removal of the building as well as machinery therefrom. The petitioners are alleged to have managed to take illegal possession of the entire building after passing of the ejectment order and that they are bound by the ejectment order dated 28.2.1987. It is claimed that when Gurnam Kaur sold her share in the suit property, the entire suit property was in possession of the tenants. According to them, Gurnam Kaur could not deliver physical possession of the suit property or a share thereof to the plaintiffs. It was also averred that a transferee from co-sharer, who was out of possession, cannot be allowed to retain exclusive possession of the joint property.
Hearing learned counsel for the parties, the trial court dismissed the application vide order dated 28.8.2010 and as already stated, the appeal carried by the plaintiffs failed before the learned Additional District Judge, Hoshiarpur vide judgment dated 12.10.2001.
Aggrieved by the aforesaid order and judgment, four of the plaintiffs have brought this revision petition .
I have heard Mr. Arun Jain, Senior Advocate assisted by Mr. Vishal Garg, learned counsel for the petitioners and Mr. Rajesh K. Dadwal, learned counsel for the caveator-respondents. I have gone through the record carefully.
Learned counsel for the petitioners drew my attention to Civil Revision No. 6654 of 2011 4 ..
Annexure P/6, a copy of the sale deed executed on 19.8.1998 by Smt. Gurnam Kaur in favour of Surinder Pal Singh in respect of her 5 marlas 1 sarsahi land from the land in question. According to him, Surinder Pal Singh, the predecessor of the petitioners and respondent Simrat Kaur had purchased 1/7th share in the super structure and the machinery of Raj Theatre. He has submitted that this Court while dismissing the revision petition of the petitioners who had brought objection petition in the execution application had noticed the factum of purchase of 1/7th share in the property in question by Surinder Pal Singh, the predecessor in interest of the petitioners, in the court auction held on 26.5.1993. According to him, the sale of a share in the suit land by Gurnam Kaur in favour of Surinder Pal Singh is not in dispute. The successors of said Surinder Pal Singh are seeking separate possession of 5 malras 1 sarsahi land by bringing a suit for partition and till that suit is decided, they are seeking the stay. It is submitted that the petitioners are running a cinema and they are entitled to remain in possession of the suit property till the property is partitioned. He has cited before me a Full Bench decision of this Court in Ram Chander Vs. Bhim Singh and others 2008(3) RCR (Civil) 685 to contend that till the suit property is partitioned, the petitioners are entitled to protect their possession thereon.
Learned counsel for the respondents has submitted that the eviction order was passed against the tenants on 28.2.1987, much earlier to the date of purchase of a share in the suit property by Surinder Pal Singh from Gurnam Kaur. According to him, Surinder Pal Singh purchased a share in the movable property installed in the cinema hall in Civil Revision No. 6654 of 2011 5 ..
court auction and he did not purchase any share in the building. According to him, though, by way of such purchase he did not become a tenant in respect of the suit property, even if it is assumed that he became a tenant in respect of the suit property, the tenancy rights would not merge in the rights of ownership purchased by him from one of the landlords. He has cited before me a number of decisions of Hon`ble Supreme Court of India where it is categorically laid down that if a tenant purchases ownership right of some of co-sharers, his tenancy does not merge with his ownership rights and his tenancy does not come to an end. These judgments are reported as Parmod Kumar Jaiswal and othes Vs. Bibi Husn Bano & Ors. 2005 (2) RCR (Civil) 629, M/s India Umbrella Manufacturing Co. & Ors. Vs. Bhagabandei Agarwalla (Dead) by LRs. Smt. Savitri Agarwalla 2004 (1) Civil Court Cases 412, T.Lakshmipathi and others Vs. P.Nithyananda Reddy and others 2003 (2) Rent Control Reporter 117, Smt. Inderjit Kaur and others Vs. Baij Nath 2003 (2) Recent Control Reporter 242, and B. Gangadhar Vs. B.G.Rajalingam 1995(3) Recent Revenue Reports
188. The sale certificate dated 27.3.2002, Annexure P5 along with Annexure A appended thereto, makes it abundantly clear that the 1/7th share purchased in the auction by Surinder Pal Singh is in the fixtures of the cinema hall including some other articles, like chairs, almirahs, fire extinguishers etc. No share in the building of the cinema hall had been sold in the auction and, consequently, not purchased by Surinder Pal Singh. By this purchase of a share in the fixtures, Surinder Pal Singh became owner of 1/7th share of said articles, but did not become a Civil Revision No. 6654 of 2011 6 ..
tenant over the property in question. Therefore, by purchase of 5 marlas 1 sarsahi land out of the the suit land from a co-sharer namely Gurnam Kaur, there is no question of merger of the tenancy rights with the ownership rights. The decisions cited by learned counsel for the respondents, therefore, have no application to the facts of this case.
Sale deed executed by Smt. Gurnam Kaur in favour of Surinder Pal Singh is dated 19.8.1998. It is recited therein that symbolic possession has been delivered to the vendee. As the landlords had not been able to take possession of the tenanted property, the suit property was still in possession of the tenants at the time of this sale deed. Gurnam Kaur was not in possession of any inch of the land from the suit property and, therefore, she could not deliver actual possession of any part or share of the suit property to Surinder Pal Singh.
The successors of Surinder Pal Singh have now brought suit for separate possession of land measuring 5 marlas 1 sarsahi out of the suit land by way of partition. By virtue of this suit alone, they cannot have right to remain in possession of the suit property and set the eviction order at naught. The eviction order sill stands and the landlords, including the petitioners being co-sharers, are entitled to take possession of the suit property sans the super structure raised and the fixtures fixed thereon. The petitioners cannot resist the execution of the eviction order after they have failed to resist the same successfully upto this Court by filing objections. Therefore, even if they are running the cinema hall, they cannot seek the relief of ad interim injunction of the nature claimed by them because that would in a way make the eviction order meaningless.
In view of the above, I find no ground to interfere with the well Civil Revision No. 6654 of 2011 7 ..
reasoned order of learned Additional District Judge and Additional Civil Judge (Senior Division), Hoshiarpur and, consequently, dismiss the revision petition.
(VIJENDER SINGH MALIK) JUDGE November 8th , 2011 som