Balwant Rai Sood and Another vs Subhash Chander and Another

G.S. Singhvi, J

These revision petitions have been filed by the plaintiff-petitioners against the order dated 8th April, 1995 passed by the Additional District Judge, Jalandhar, dismissing the two appeals filed by them against the orders dated 27th October, 1993 and 2nd January, 1994 passed by the Sub Judge, Phillaur, dismissing two applications filed by the plaintiff-petitioners under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure.

The plaintiff petitioners have filed two suits one for permanent injunction and the other for declaration with consequential relief of permanent injunction and both these suits are pending in the Court of Sub Judge, Phillaur. Along with the plaints, the plaintiffs-petitioners filed applications under Order 39 Rules 1 and 2 read with Section 151 of the CPC for restraining the defendants-respondents from dispossessing them (petitioners) from the property in dispute.

The claim made by the plaintiff-petitioners is founded on the following facts:-Property No. B-VIII/121 was owned by one Kahan Chand. This property was inherited by Shri Hamir Chand and Shri Moti Ram sons of Kahan Chand and being the descendants of Kahan Chand, the plaintiffs as well as defendants 3 to 21 came in possession of the property through their father Hamir Chand and Moti Ram. The plaintiffs-petitioners alleged that defendants 1 and 2 (respondents 1 and 2) did not have any right or interest over the property but they were threatening to dispossess them on the premise that the property had been purchased by them (defendants respondents 1 and 2), from other defendants.

In their reply, defendants-respondents 1 and 2 pleaded that the property No. B-VIII/124 is owned by several persons including Murari Lal, Khusbhakat Rai, Bimla Devi, Hakikat Rai, Des Raj and Fateh Chand etc. and that they have purchased separate portions of the property from S/Shri Murari Lal (1/3rd of his share), Khusbhakat Rai, Hakikat Ram, Des Raj, Fateh Chand, Smt. Bimla Devi and Smt. Kaushalya Wati by separate registered sale deeds and these persons handed over possession of their respective shares to defendants 1 and 2. It has also been pleaded by defendants 1 and 2 that the plaintiffs did not have any right, title or interest over the property in dispute.

After hearing the parties, the trial Court dismissed both the applications for grant of temporary injunction by passing separate orders on 27th October, 1993 and 2nd January, 1994. The appeals filed by the plaintiffs-petitioners also met with the same fate.

The argument of Shri R.C. Dogra, Senior Advocate appearing for the petitioners, is that the property is in possession of the petitioners and, therefore, till the final decision of the suit, the Court should, have protected the same. Learned counsel placed reliance on a judgment of the Full Bench of this Court in Bhartu Ram v. Ram Sarup 1981 PLJ 204 and argued that in a suit for declaration and injunction, the Court is duty bound to direct the parties not to disturb the existing position of the property in dispute. Shri Dogra argued that both the Courts have seriously erred in ignoring the fact that the so-called dispute regarding the number of property was a deliberate creation of defendants 1 and 2 and the appellate Court was not justified in ignoring the documents which were filed by the petitioners along with the applications filed under Order 41 Rule 27 of the Code of Civil Procedure.

On the other hand, learned counsel for the defendants-respondents. 1 and 2 argued that there is no evidence regarding inheritance of the property by the petitioners and there is nothing on the record to show that the plaintiff-petitioners were in possession as owners or co-sharers of the property. Shri Sarin argued that the appellate Court has taken into consideration all the points raised on behalf of the petitioners and has rightly upheld the finding of the fact recorded by the trial Court on the issue of prima facie case and, therefore, the High Court should not exercise its revisional jurisdiction to upset the concurrent finding recorded by the Courts below.

Before the trial Court as well as the appellate Court, the petitioners founded their claim on the premise that they have inherited the property in dispute from their ancestors and they are in possession of the same. Learned Sub Judge, Phillaur observed that there was a serious discrepancy in regard to the description of the property and its municipal number and there is no evidence on record to show that the property was in possession of the plaintiffs and further that the sale deeds produced by the defendants were prima facie indicative of their right over the property. On that premise, the trial Court dismissed the applications filed by the petitioners for grant of injunction. While upholding this finding, the appellate Court observed as under:-

"In the instant case Prima facie the plaintiffs/appellants have propounded their claim over the property in dispute bearing municipal No. B-VIII/121 marked as ABCDEFGHIJ shown in red colour in the site plan attached having inherited the same from the ancestors, and further that they have been placing the house hold articles thereon in the shape of Khola. They have not plainly and frankly placed the facts in the plaint as to how and in what manner and from whom they have inherited the property in dispute and even the description of the property bearing No. B-VIII-121 has not been shrouded with suspicion in the face of Ration Card of one Sukhdev Rai bearing property No. B-VIII/121. But surprisingly the plan in Annexure-A containing boundaries of the property in dispute substantially tally with the plan filed by the appellants and one property cannot bear two municipal property numbers. Moreover, municipal property No. 124 in the shape of Khola are referred to in house tax assessment register for the years 1975-76 and surreptitiously change into the number B- VIII/124. This property has also been subjected to security proceedings as clearly reflected in calendra u/s 145 Criminal Procedure Code by the Executive Magistrate, and the property also remained under receiver vide order dated 2nd August, 1993 of the Sub Divisional Magistrate, Phillaur. The perusal of the mortgage deed dated 30th January, 1940 executed by Ganga Bishan Durga Dass in favour of Salig Ram and Beli Ram predecessors-in-interest pertaining to one shop and two houses, boundaries of which are referred to therein, which evidently show the property in dispute to be one time owner by the predecessors in-interest of the vendors who sold the same in favour of the respondents vide six sale deeds, photo copies of which are placed on the record. The appellants filed an application under Order 41 Rule 27 CPC to place certain documents on the file, the admitted facts therein of Ganga Bishan and Durga Dass mortgaging their share in the property and that heirs of Hamir Chand son of Kahan Chand were also the co-sharers and it is further stated therein that mortgage deed proves to the hilt that Moti Ram son of Kahan Chand and therefore heirs of Moti Ram were not the sole proprietors of the suit property and so the defendants Subhash Chander and Narinder Kumar cannot claim exclusive Ownership by purchase from heirs of Moti Ram namely Madan Lai son of Murari Lal, Khushbakhat Rai, Des Raj and Fateh Chand. Reply to the application though resisted, indicates that Subhash Chander and Narinder Kumar claim exclusive ownership over the property in dispute but it is alleged that Moti Ram was the exclusive, owner of the suit property. Therefore, by virtue of purchase from legal heirs of Moti Ram the respondents are the exclusive owners. Fairly the respondents placed on record pedigree table in the written statement about the ownership rights of the heirs of Ganga Bishan and Durga Dass from whom they purchased the property in dispute. Therefore, the conduct of the appellants is blatantly contemptuous to conceal material facts which disentitle them to the relief of interim injunction and even if the averments mentioned in the application under Order 41 Rule 27 CPC are taken to be correct at its face value, the plaintiffs/appellants cannot assume the role of more than a co-sharer. But legally speaking a co-sharer in the suit property is not entitled to injunction against the other co-sharer even if the respondents failed to establish exclusive rights over the property in dispute at the time of trial."

It is, therefore, clear that the Courts below were alive to the parameters which are required to be applied for deciding the application for grant of temporary injunction and both the Courts have rightly held that the plaintiffs have failed to establish their prima facie right over the property in dispute. There is nothing in the orders passed by the trial Court and the appellate Court to show that any particular piece of evidence has been ignored by them in recording a finding that the plaintiffs have failed to establish the prima facie case. Even before this Court, no such evidence has been produced to show that the plaintiffs-petitioners are in possession of the property. I, therefore, do not find any reason to interfere with, the finding recorded by the Courts below on issue of prima facie case and therefore, there is no justification for passing an order of injunction in favour of the petitioners, particularly when the disputed property has come in possession of defendants 1 and 2 (respondents 1 and 2) on the basis of registered sale deeds executed on different dates by Murari Lai, Khushbakhat Rai, Hakikat Rai, Des Raj, Fateh Chand, Bimla Devi and Kaushalya Wati.

For the reasons mentioned above, both the revision petitions are dismissed.