Baldev Singh vs Karam Singh

Dev Darshan Sood, J.—This petition has been filed against the concurrent findings of the two courts below dismissing the application filed by the petitioner under Order 39 Rule 2A of the Code of Civil Procedure. The first respondent Smt. Seti Devi has been deleted by the order of this Court on 25.6.2009. The case of the petitioner was that he had filed a suit for permanent prohibitory injunction restraining the respondents Smt. Setti Devi and Sh. Karam Singh from causing interference or raising construction on the suit land. An application under Order 39 Rules 1 and 2 C.P.C. was also filed and in that application ad-interim ex parte injunction order was passed restraining the respondents from raising any kind of construction. This order was confirmed on 18.3.2004. The case of the petitioner is that the second respondent Sh. Karam Singh son of Smt. Seti Devi was aware about the ex parte ad interim order passed on 30.10.2003 as also the order dated 18.3.2004 but despite this, the construction was carried out on the suit land in violation of the Court orders.

The spot was inspected by the members of the Gram Panchayat, who found that the construction was in progress. The land was demarcated by the revenue agency in the absence of the petitioner. An application under Order 26 Rule 9 read with Section 151 C.P.C. was filed by the petitioner for the appointment of Local Commissioner to demarcate the land in order to ascertain infraction of the order.

The petition was contested by the respondents. It was stated that respondent Smt. Seti Devi is an old lady aged 85 years, the construction had been raised 15 years prior to the suit and the petition is a ploy to harass her. The learned appellate Court holds that the suit was initially filed against Smt. Seti Devi and respondent No. 2 was not a party to the main suit nor to the injunction application but he was later on joined as one of the defendants. On 15.2.2004, the members of the Gram Panchayat visited the spot and passed order Ext. AW2/A where again respondent No. 2 was not a party to the suit. There is an old ''danga'' (supporting wall) on the boundary of the land separating the property of the plaintiff and the defendants. The appellant has appeared as AW1 and has admitted that the construction is above the ''danga'' in his own land. It has come in his evidence that 5/6 cases had been filed by the appellant against the respondents and all had been decided against him. On the other evidence also, the court found that the evidence does not support the case of the petitioner. The Court then notes that Smt. Seti Devi was aged about 80 years old and unable to move as stated by her son Sh. Karam Singh. The appellant laid stress on the report of the Local Commissioner Ext. AW4/A in which 0-00-08 hects. of land was found in possession of the respondents by placing an iron gate and pillars in one corner. The evidence being un-satisfactory, the Court dismissed the appeal affirming the order of the learned trial Court dismissing the application under Order 39 Rule 2A C.P.C. The petitioner now challenges the legality of this order on a number of grounds. I am unable to accept the submission made on behalf of the petitioner that there is an illegality which requires interference by this Court under Article 227 of the Constitution of India. Two Courts below have concurrently held against the petitioner holding that the evidence does not establish the construction raised by the respondent on the suit land. No doubt that action can be initiated against the party which does not obey the injunction order but none the less there should and ought to be some cogent proof to establish the fact. In the un-satisfactory factual state of affairs, I cannot accept that any interference is called for under Article 227 of the Constitution of India. I may add that the parties are litigating in the Civil Suit which will finally determine the rights of the parties. Two Courts below having concurrently found against the petitioner, there is, thus, no merit in this petition which is accordingly dismissed. This judgment will have no bearing in the suit.