Amarjit Singh vs Tara Chand and Others

Dharam Chand Chaudhary, J.—Aggrieved by an order passed on 29.6.2013 by learned Additional District Judge, Mandi, in Civil Misc. Appeal No. 1 of 2013, the petitioner, plaintiff in the trial Court, has preferred this petition for quashing the same.

The facts not in dispute, as disclosed from the record, are that the plaintiff and the 2nd respondent, hereinafter referred to as "defendant No. 2", are real brothers. Land in dispute, with one residential house, constructed over a portion thereof, i.e. Khasra Nos. 701, 703 and 705, came to them and their 3rd brother Gurjit Singh, from their father Balbir Singh and mother Parkash Kaur. The plaintiff claims the land and house to be in joint ownership and possession. No doubt he admits the sale of the land and the portion of the house to the extent of the share of defendant No. 2 to defendant No. 1 for consideration, however, according to him, defendant No. 1 cannot claim a specific portion of the land and also the house being not in possession thereof.

The contesting defendant, however, has claimed that all the three brothers in a family arrangement partitioned the house and also the land and were in separate possession to the extent of their respective shares. Mutation No. 877 was entered pursuant to such family arrangement and sanctioned by the competent revenue officer. Defendant No. 2 sold the house and land measuring 00-01-08 hectares to defendant No. 1. Sale deed to this effect was duly executed and registered and he was put in possession thereof. The plaintiff, however, with a malafide intention to grab the house and land he purchased from defendant No. 2, put his lock on the house so purchased by him.

It is seen from the plaint that the plaintiff has sought decree for permanent prohibitory injunction restraining defendant No. 1 from causing any interference or disturbance in the privacy of his house existing over the suit land. By way of ad-interim injunction, the defendant was sought to be restrained from causing any interference in the suit house and also disturbing the privacy of the plaintiff.

Defendant No. 1 has not only contested the suit, but also preferred counter claim. He also contested the application on the ground that on account of having acquired 1/3rd share of defendant No. 2 in the suit house and also the land, he is legally entitled to remain in possession thereof and enjoy its usufruct.

Learned trial Court after taking into consideration the material available on record has dismissed the application under order 39 rules 1 and 2 CPC, registered as CMA No. 58-VI/2011 (Civil Suit No. 52/2011), vide order Annexure P-1. Appeal preferred by the plaintiff against the said order also met the same fate being dismissed vide order annexure P4.

The legality and validity of the impugned order has been questioned in this petition on the grounds, inter alia, that both Courts below have misread and misconstrued the plan in which the location of the suit house has been reflected, as according to the plaintiff, the same is single dwelling house having no separate entrance. The admission on the part of the defendant No. 1 that the plaintiff put his own lock in the premises in dispute itself demonstrates that he is not in possession thereof, however, both Courts below have ignored the same. It is also pointed out that defendant No. 2 has sold only his share and nothing beyond that. Both the Courts below allegedly have failed to appreciate the real controversy between the parties. The complaints made by both the parties with the local police have also been misread and misconstrued. An application under Order 39 rule 7 CPC filed for appointment of Local Commissioner has also been erroneously dismissed. Impugned order, therefore, has been sought to be quashed and set aside.

Having gone through the entire record and also taking into consideration the submissions made on both sides, it is amply clear that the property in dispute was joint of the three brothers, namely Amarjeet Singh (plaintiff), Bhupinder Singh (defendant No. 2) and one Gurjit Singh. The house alongwith courtyard is in existence over Khasra Nos. 701, 703 and 705. A reference in this behalf can be made to the jamabandi for the year 2008-09 available on record. In a family settlement the property seems to be partitioned amongst all the three co-sharers. Mutation No. 877 to this effect has been sanctioned and attested. It appears that pursuant to Mutation No. 877, the property in dispute came to be entered in the records-of-rights separately, as is apparent from the copy of Jamabandi for the year 2008-09, in which defendant No. 2 has been shown in exclusive possession of the land in dispute entered in Khasra Nos. 700 and 702 and the land measuring 00-01-08 hectares, over a portion whereof the house in question is also in existence. He sold this property including the house to defendant No. 1. Entry to this effect is there in the remarks column of this jamabandi. The sale deed, which is on record, also reveals that it is this land, which in its entirety, has been purchased by defendant No. 1 from defendant No. 2 alongwith 1/3rd share in remaining land, measuring 02-06 bighas. The sale deed further reveals that defendant No. 1 was put in possession of land and house, he purchased from defendant No. 2.

The plan prima-facie reveals that there is separate entrance to the portion of the house sold by defendant No. 2 to defendant No. 1. Plaintiff seems to be aggrieved on account of his privacy likely to be disturbed because of entry of defendant No. 1, a stranger in the suit house as is apparent from the relief sought in the plaint. Defendant No. 1, however, is a bonafide purchaser of that portion of the house, which as per the record available at this stage, prima-facie was in exclusive possession of defendant No. 2 after partition of the house in a family settlement. Defendant No. 1 being a bonafide purchaser and having been put in possession of the property including the portion of the house he purchased, therefore, cannot be deprived from enjoying the usufruct of the property so purchased by him, particularly when balance of convenience lies in his favour. Even the equity also leans in favour of defendant No. 1 and against the plaintiff. The plaintiff in the given facts and circumstances is not entitled to the relief he sought in the interim which is equitable in nature.

This Court is in agreement with the findings recorded by both the Courts below that in case the interim relief as sought by the plaintiff is granted, the comparative mischief likely to be caused thereby would be more greater to defendant No. 1 as compared to the plaintiff, who seems to have put lock in an unlawful manner, on the premises purchased by defendant No. 1. If he has made the report with the police, admittedly, defendant No. 1 has also reported the matter to the police. Therefore, there is no question of misreading or misconstruction of the material available on record by both the Courts below. The impugned order being legally and factually sustainable, therefore, calls for no interference in these proceedings. Consequently, the petition is dismissed. Pending application(s), if any, shall also stand disposed of.