Punjab-Haryana High Court
M/S Aarlia Builders And Developers ... vs M/S Sukhda Promoters Private Limited & ... on 3 February, 2014
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Revision No.3838 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.3838 of 2011 (O&M)
Date of Decision: 3.2.2014
M/s Aarlia Builders and Developers Private Limited
......Petitioner
Versus
M/s Sukhda Promoters Private Limited & Ors.
.....Respondents
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.Chetan Mittal, Senior Advocate with
Mr.Varun Issar, Advocate for the petitioner.
Mr.Arun Jain, Senior Advocate with
Mr.Mukul Aggarwal, Advocate for respondent No.1.
Mr.Hemant Bassi, Advocate for respondent No.8.
Nemo for the remaining respondents.
MEHINDER SINGH SULLAR, J. (Oral)
The matrix of the facts & material, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, is that, initially, petitioner-plaintiff M/s Aarlia Builders and Developers Private Limited (for brevity "the plaintiff- company"), has instituted the civil suit (Annexure P5) for a decree of declaration to the effect that the order of partition (Sanand Taksim) dated 22.1.2009 and the entire partition proceedings by the revenue authorities, pertaining to the land in dispute, are illegal, unlawful, arbitrary, ultra vires, void abinitio, unconstitutional, without jurisdiction and are not binding on its rights, with a consequential relief of permanent injunction, restraining Arvind Kumar Sharma 2014.02.07 10:47 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.3838 of 2011 (O&M) 2 respondents-defendants M/s Sukhda Promoters Private Limited & other companies (for short "the defendants-companies"), from changing the nature, raising any construction and from alienating any specific portion of the suit property to any other person in any manner. The plaintiff-company has also filed the application (Annexure P6) for ad interim injunction under Order 39 Rules 1 and 2 read with section 151 CPC.
2. Sequelly, the defendants companies No.1 to 6 have contested the suit & stay application, filed written statement (Annexure P7), reply (Annexure P8) to the injunction application, stoutly denied all the allegations contained in the plaint and prayed for dismissal of suit.
3. The trial Court dismissed the injunction application filed by the plaintiff-company, by means of impugned order dated 7.1.2010 (Annexure P10).
4. Aggrieved thereby, the appeal (Annexure P11) filed by the plaintiff-company was dismissed as well, by the appellate Court, by virtue of impugned order dated 22.2.2011 (Annexure P14).
5. The petitioner-plaintiff-company still did not feel satisfied and has preferred the present petition, to challenge the impugned order and judgment of the Courts below, invoking the jurisdiction of this Court, as contemplated under Article 227 of the Constitution of India.
6. After hearing the learned senior counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, the instant petition deserves to be partly accepted in this context.
7. As is evident from the record that the case set up by the plaintiff-company, in brief in so far as relevant, was that it has purchased Arvind Kumar Sharma 2014.02.07 10:47 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.3838 of 2011 (O&M) 3 140/1280th share out of the joint land in litigation, vide registered sale deed dated 15.11.2006 (Annexure P1 colly). The indicated sale deed was duly incorporated in the revenue record, by way of mutation, bearing No.2686 and duly sanctioned by the competent authority on 19.3.2007. It was claimed that although the plaintiff did not purchase any land out of land, bearing Khewat No.34, Rectangle No.11, Killa No.8(8-0), 20(8-0), but still, the Halqa Patwari, in collusion with the contesting defendant-companies No.1 to 7, has illegally incorporated the land of Khewat Nos.34 and 35 of the earlier jamabandi for the year 1999-2000 in one Khewat, bearing No.39, in subseqnent jamabandi for the year 2004-2005, in order to cause loss to plaintiff-company and other co-sharers. In this manner, the defendant- companies were stated to have played a fraud on the plaintiff-company and illegally got the land partitioned in its absence.
8. On the contrary, while acknowledging the pointed clubbing, the contesting defendants have asserted that clubbing of Khewat Nos.34 & 35 into Khewat No.39 in subsequent jamabandi for the year 2004-05, is neither illegal nor is barred by any law. The revenue authorities were stated to have rightly partitioned the disputed land. That means, the plaintiff-company has never purchased the land, out of Khewat No.34, but the revenue officers have clubbed khewat Nos.34 & 35 in Khewat No.39 in the subsequent jamabandi. Not only that, the defendant-companies have got partitioned the land in question on the basis of subsequent jamabandi, that too, without impleading the plaintiff-company as a party.
9. What cannot possibly be disputed here is that, as to whether the clubbing of indicated khewats is legally permissible and whether the order of partition, without impleading the plaintiff-company as a party, is illegal Arvind Kumar Sharma 2014.02.07 10:47 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.3838 of 2011 (O&M) 4 or not, inter-alia, would be the moot issues to be decided, after receiving the evidence of the parties, during the course of trial. However, the trial Court as well as appellate Court declined the relief of ad interim injunction to plaintiff-company, through the medium of impugned orders. The main grounds, which appear to have been weighed with the Courts below, to negate its plea, were that the clubbing of the khewats in question is legally permissible and that since the plaintiff-company and defendants-companies were working from the same premises, so, the plaintiff-company was not a necessary party in the partition proceedings.
10. Here, to me, the Courts below slipped into a deep legal error in this respect. It remained an unfolded mystery as to how, at what stage, in what manner and under which provisions of law, the revenue officers were competent and have clubbed the pointed khewats before the partition proceedings. Moreover, once, it is proved that the plaintiff-company has already purchased the disputed land, vide sale deed (Annexure P1 colly), which was duly incorporated in the revenue record, by way of mutation, bearing No.2686, much prior to the filing of the partition proceedings, in that eventuality, the partition proceedings in its absence, are not binding on the plaintiff-company in this regard.
11. However, the celebrated contention of learned senior counsel for the defendant-companies that as the plaintiff-company and defendant- companies were carrying on their business from the same premises at the relevant time, therefore, the plaintiff-company was not a necessary party in the partition proceedings, is not only devoid of merit but misplaced as well. The mere fact that both the parties were working from the same premises, ipso facto, is not a ground, muchless cogent, to ignore the valuable rights Arvind Kumar Sharma 2014.02.07 10:47 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.3838 of 2011 (O&M) 5 and interest of plaintiff-company in the partition of the land in litigation, which altogether is entirely a different legal entity. Once, it is proved that the partition proceedings were carried out at the back of plaintiff-company, then, the partition proceedings, as such, are illegal and not binding on it, as contrary urged on behalf of contesting defendants. In that eventuality, the land in dispute will be deemed to be a joint property of the parties and every co-owner/co-sharer would be deemed to be in possession of every inch of the land. In case, any co-sharer has purchased any particular portion, even then, the sale would be deemed to be sale of share in the joint property. This matter is no more res integra and is now well settled.
12. An identical question came to be decided by this Court in case Bhartu Vs. Ram Sarup 1981 PLJ 204, wherein, having considered the rights and liabilities of co-owners, it was ruled as under:-
(1)A co-owner has an interest in the whole property and also in possession of all even if all but one are actually out of possession.
(2)Possession of joint property by one co-owner, is in the eye of law, possession of all even if all but one are actually out of possession. (3)A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4)The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other. (5)Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6)Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7)Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition.Arvind Kumar Sharma 2014.02.07 10:47 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.3838 of 2011 (O&M) 6
13. Therefore, the other co-sharers (defendant companies) cannot legally be permitted to raise construction, which changes the nature of the property detrimental to the interest of other co-sharers, unless the matter is finally decided by the concerned Court.
14. There is yet another important aspect of the matter, which can be viewed entirely from a different angle. The plaintiff-company has moved the injunction application (Annexure P6), to restrain the contesting defendants from changing the nature, raising any kind of constructions and alienating any specific portion of the land in dispute to any other person in any manner. To my mind, if the contesting defendants are permitted to totally change the nature of the disputed property by raising construction over it and then creating third party's rights by alienating it, then, it will amount to give rise to the multiplicity of the litigations, which is not legally permissible. On the other end, no prejudice is going to be caused to the contesting defendants, if the parties are directed to maintain status-quo with regard to the existing position of the property in question, with a further direction to the trial Court to decide the main suit expeditiously. In such a situation, the status-quo of the property in dispute is to be preserved, in view of law laid down by the Hon'ble Supreme Court in cases Maharwal Khewaji Trust (Regd.), Faridkot vs. Baldev Dass 2004 (4) R.C.R. (Civil) 760, Makers Development Services Pvt. Ltd. Vs. M. Visvesvaraya Industrial Research and Development Centre (2012) 1 SCC 735 and T.Lakshipathi vs. P. Nityanandan Reddy AIR 2003 SC 2427.
15. Not only that, the Hon'ble Apex Court in case Gangubai Bablya Chaudhary And Others vs. Sitaram Bhalchandra Sukhtankar & Ors. AIR 1983 SC 742 has ruled as under :-
Arvind Kumar Sharma2014.02.07 10:47 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.3838 of 2011 (O&M) 7
"if respondents are allowed to put up construction by the use of the F.S.I for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced because they are in possession of about 9,000 sq. metres of land on which they can put up construction."
16. Therefore, the ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand and the contrary arguments of learned counsel for defendant-companies "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances. Thus, to me, the Courts below appear to have committed deep illegality and procedural irregularity, causing grave injustice to plaintiff-company to negate its claim of injunction in the manner depicted here-in-above and the impugned order & judgment of the Courts below cannot legally be maintained in the obtaining circumstances of the case.
17. No other legal point, worth consideration, has either been urged or pressed by the learned senior counsel for the parties.
18. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of main suit, the instant petition filed by petitioner- plaintiff-company is hereby partly accepted. The parties are directed to maintain status-quo with regard to existing position of the property in litigation during the pendency of the main suit. Consequently, the impugned order and judgment of the Courts below are modified to the extent and in the manner indicated here-in-above. At the same time, taking into consideration the nature of litigation and urgency of the matter, the trial Court is directed to decide the main suit expeditiously, preferably within a Arvind Kumar Sharma 2014.02.07 10:47 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.3838 of 2011 (O&M) 8 period of one year from the date of receipt of certified copy of this judgment.
19. Needless to mention that nothing observed here-in-above would reflect on the merits of the case, in any manner, during the trial as the same has been so recorded for the limited purpose of deciding the present petition in an injunction matter.
Sd/-
(Mehinder Singh Sullar) Judge 3.2.2014 AS Whether to be referred to reporter ? Yes/No Arvind Kumar Sharma 2014.02.07 10:47 I attest to the accuracy and integrity of this document Chandigarh