Bachan Singh and another vs Lakhwinder Kaur and others

The present revision petition has been preferred at the instance of the defendants in the civil suit titled as ""Lakhwinder Kaur and others Vs.

Bachan Singh and others"" wherein the following relief had been sought:-

Suit for declaration to the effect that the plaintiffs and proforma defendant no.3 have indefeasible to get right of path for ingress and egress by way

of prescription and easement of necessity through the passage comprised in Square No.76 Killa No.22/2(0-9), 23/2(0-7), Khewat No.516

Khatuni No.657, as per jamabandi for the year 2011-2012 situated in village Abholi, Tehsil Rania, District Sirsa, further through Square No.65

Killa No.23(3-12) 24/1(4-8), 24/2(3-12), (on the southern side of these killa numbers) having two karams width as per jamabandi for the year

2011-2012, situated in village Ottu, Tehsil Rania, District Sirsa; as a consequential relief of permanent injunction restraining the defendants from

creating any hinderance in Rasta/path to ingress and egress to reach the house of the plaintiffs and proforma defendant situated in Square No.66

Killa No.4/1(2-12) on the eastern side which is in 1/2 share and agriculture land in Square No.65 Killa No.25 (8-0), etc. and also for mandatory

injunction directing the defendants for restoration of the same in Square No.65 Killa No.23, 24/1 mischief of cause during the pendency of the

previous suit the defendants created any hindrance over the said path; on the basis of evidence of every description-oral as well as documentary.

Along with aforementioned suit, an ad interim application under the provisions of Order 39 Rule 1 and 2 CPC had been preferred. The trial

Court vide order dated 05.04.2016 allowed the application restraining the petitioners-defendants in the suit from creating any hindrance in the

passage running on southern side of Killa No.23 and 24/1 of Square No.65 with further direction that they may fill the earth in the damaged

portion of passage to the extent of reasonable convenient level. The aforementioned order has also been upheld in the Appellate Court and in this

backdrop of the matter, present revision petition has been preferred.

Mr. Sandeep Punchhi, learned counsel appearing on behalf of the petitioners submitted that the respondents-plaintiffs had another land bearing

Killa No.3 as depicted in the Aksh Shijra, which had been sold and therefore, they had no passage to killa No.66//5/2, as the passage is only into

Khasra No.21/2. All these facts have not been noticed by the Courts below for granting injunction and heavy reliance had been laid to the previous

interim order passed in suit instituted by Mulakh Raj and others against the respondents Lakhwinder Kaur and others i.e. plaintiffs in the present

suit. The plaintiffs have not been able to bring the case within the ingredients/provisions of Order 39 Rule 1 and 2, thus, prima facie balance of

convenience is in favour of the petitioner-defendants and irreparable loss would be caused to them. The respondents-plaintiffs have no passage

belonging to their land whereas the passage belongs to petitionersdefendants. All these factors were required to be pondered upon and therefore,

the orders under challenge are not sustainable in the eyes of law and liable to be set aside.

Mr. S.S. Rangi, learned counsel appearing on behalf of the caveator-respondents submitted that the suit is at the stage of plaintiffs'' evidence and

undertakes to complete the trial within a reasonable time period which this Court may deem appropriate. However, he submitted that in earlier suit,

there was not only an injunction order passed whereby the present respondents-plaintiffs herein and defendants in the trial Court were restrained

from interfering into the ownership and physical possession of Mulkh Raj over the suit property but it was subject to allowing the respondents-

plaintiffs herein peaceful usage of the property. The aforementioned order was assailed and the same was stayed. During this period, defendant

No.2 herein dug the earth of the passage. It is in this backdrop of the matter, the cause of action arose to file the suit in hand. Even the local

commissioner was also appointed in the earlier suit and as well as in this suit also. The report is also in tandem with the pleadings/application for

interim stay as well as suit, thus, urges this Court for dismissal of the revision petition.

I have heard learned counsel for the parties and appraised the paper book. Serious dispute has arisen with regard to availability of the passage

which will be subject matter of evidence before the Court below. Such matters, in my view, cannot be examined in revision petition. Instead of

pondering upon the merit and demerit of the matter, I deem it appropriate to uphold the orders under challenge and dispose of the revision petition

by giving direction to the parties to lead evidence in a time bound manner. The plaintiffs and defendants shall avail 3-3 effective opportunities and

lead the evidence in support of their respective cases and also file the list of witnesses in advance in case any witness is to be summoned, much

less, diet money. The aforementioned 3-3 opportunities will span over a period of 4- 4 months each i.e. 8 months and thereafter in two months, the

trial Court shall decide the suit in accordance with law.

The revision petition stands disposed of in the above terms. In case, the trial Court found that any of the parties is involved in the dillydallying

tactics, it shall take into consideration the same and pass appropriate orders in accordance with law.