Jiwan Singh vs R.Kant and another

Surinder Singh, J.—This judgment will dispose of four Revision Petitions constituted by two sets of two petitions each. The first set is of Civil Revisions Nos. 2833 and 2834 of 1983 filed by Jiwan Singh etc. and Sant Lal etc. respectively, against R.Kant and another in the former petition and R. Kant alone in the latter. Both these petitions had been admitted for hearing and ex parte order in favour of the revisionpetitioners regarding status quo as to possession had been issued at the Motion stage. Subsequently, the other two Revision Petitions, i.e. Nos. 3199 and 3200 of 1983 were filed, by the opposite party, i.e., R. Kant, impugning the very orders which were the subjectmatter of challenge in the earlier two Revision Petitions. Notice of Motion was issued in the latter two Revision Petitions on December 13, 1983, on which occasion Mr. V.K. Jain, Advocate, accepted Notice on behalf of respondent No. 1. The other respondents were ordered to be served for the next date. After due service, all the respondents were represented by a learned counsel.

When Civil Revisions Nos. 3199 and 3200 of 1983 were taken up for hearing after Notice of Motion, the learned counsel for the respondents in the said Revision Petitions contended that the set of two Revision Petitions admitted earlier, may also be taken up as ex parte order of status quo had been issued in those petitions and in the absence of the same, there was a possibility of conflicting decisions in regard to the interim relief to be granted in the latter Revision Petitions. Consequently, the earlier Revision Petitions were also ordered to be heard along with the latter two, in order to avoid any such conflict of decisions in the two sets of petitions, in which the same orders of the lower appellate Court had been impugned.

All the four Revision Petitions as also some miscellaneous matters connected therewith have been heard at considerable length, the arguments having been addressed by Mr. P.R. Mridul, Senior Advocate, assisted by Mr V.S. Vasishtha, Advocate, on behalf of R. Kant and by Mr. M.C. Bhandare, Senior Advocate, assisted by Mr. N.C. Jain, Sr. Advocate and Mr. V.K. Jain, Advocate on behalf of Jiwan Singh etc. and Sant Lal etc.

A brief resume of the facts is necessary for a proper appreciation of the present dispute. On March 16, 1982, R. Kant as Proprietor of R. Kant and Company filed as suit against Sant Lal and others for permanent injunction restraining the respondents from dispossessing the plaintiff from suit land and interfering with his possession. Along with the suit, an application for temporary injunction in the same terms was also moved. The plaintiff R. Kant alleged that he was in possession of the suit land comprising Khasra Nos. 9 to 16 and had developed the same for setting up a Film Studio Complex on the land. It was further alleged that the opposite party was trying to take forcible possession of the suit land. The suit was contested and the plea raised by the opposite party was that the suit land was a part of a much larger area which was a joint holding of the Proprietors of the village and that the predecessorsininterest of plaintiff R. Kant were not in possession of the suit land. The further plea was that the alienations entered into by the said predecessorsininterest in favour of the plaintiff were void and illegal. The trial Court was at the stage of considering the grant or otherwise of temporary injunction in favour of the plaintiff during the pendency of the suit.

Meanwhile, Jiwan Singh and some others, residents of the village filed a suit on April 17, 1982 for permanent injunction against R.Kant aforesaid. This suit was also accompanied by an application for the grant of temporary injunction, the allegation of the plaintiffs in this suit being that they were the Proprietors of the village and the suit land being shamilat land, could not have been transferred by some of the cosharers who were not in exclusive possession of the same. R. Kant for himself and as Proprietor of his Firm R. Kant and Company defended his suit as also the application for temporary injunction, in which the allegation made was that they were out to take forcible possession of the suit land from the rightholders. This matter also reached the stage of consideration as to whether temporary injunction had to be granted or not in favour of the plaintiffrightholders. It may be observed here that the trial Court considered the matter regarding the grant of temporary injunction in both the suits and disposed of the same by means of separate judgments, though, and rightly so, of common date, i.e., August 6, 1982. Except for the change of names of the parties and their title as plaintiff/defendants, the two judgments are more or less copies of each other and can be considered in consolidation. In substance, the trial Court held that R. Kant, the transferee of the property in dispute had not made out a prima facie case for the grant of temporary injunction against the rightholders. While coming to this conclusion, the trial Court refused to place reliance upon a number of Sale Deeds executed by some of the cosharers in favour of R.Kant as also the relevant copies of Khasra Girdawris, mutation and Jamabandi, in favour of R. Kant placed on the record. The trial Court on the other hand found a prima facie case in favour of the right holders and issued temporary injunction against R. Kant and his Company restraining them from dispossessing the former from the suit land or interfering with their possession.

R. Kant went up in appeal against the verdict of the trial Court in the two cases mentioned above, by means of two separate appeals which were heard and disposed of by the leaned Additional District Judge (II), Faridabad, vide separate judgments both dated August 18, 1983. These two judgments are also copies of each other excepting for the names of parties and their status as appellants/respondents, the cases being crossappeals. The learned Additional District Judge accepted both the appeals holding that R. Kant was proved to have purchased the suit property by means of various Sale Deeds placed on the record and the physical possession of the said property had been delivered to him by his vendors at the time of these sales. The learned Additional District Judge further observed that the Revenue entries consisting of Khasra Girdawris from Rabi 1978 to Kharif 1981 and the copy of the Jamabandi for the year 197677 showed that R. Kant was in possession of the suit property and his name appeared in the column of cultivation in the Jamabandi. The learned Additional District Judge also took note of some other attending circumstances and came to the conclusion that the orders passed by the trial Court were not legal and that a prima facie case, as also balance of convenience, had been made out in favour of R. Kant. A further finding was given that in case R. Kant was denied the relief of temporary injunction, he would suffer an irreparable loss on account of his forcible dispossession from the suit land. While accepting the appeals of R. Kant the learned Additional District Judge observed that the trial Court had not acted correctly in expressing an opinion in regard to be genuineness or otherwise of the documents relied upon by R. Kant and had wrongly gone to the extent of deciding the whole case on merits, while disposing of the application for temporary injunction, more so when the parties had not led any evidence. As a result of these findings, the learned Additional District Judge set aside the order of the trial Court and holding that R. Kant was proved to be in possession of the disputed property, granted temporary injunction against the opposite party restraining them from interfering with the possession of R. Kant over the suit land. However along with the said order the learned Additional District Judge issued further direction which is hotly contested in these Revision Petitions. The direction issued is that "in the interest of justice, it is ordered that status quo regarding suit property be maintained till the decision of the suit and its nature should not be changed by the plaintiff till then". In consequence of the orders passed by the learned Additional District Judge, the right holders preferred the earlier two Revision Petitions against that part of the order as per which they had been temporarily injuncted and R. Kant has filed the latter two Revision Petitions with a view to impugn the direction issued to him to maintain status quo regarding the property and not to change the nature of the suit land pending disposal of the suit. The four Revision Petition have become so inextricably intermingled that it has become desirable to dispose of all the matters together.

Before adverting to the respective merits of the contentions raised by the learned counsel for the parties, it would be expedient to dispose of an objection raised on behalf of the respondents in Civil Revisions Nos. 3199 and 3200 of 1983. The objection pertains to the delay in the filing of the Revision Petitions. In this behalf, the petitioner filed applications under section 5 of the Limitation Act for condonation of the delay. It may be observed here that at the Motion stage it was ordered in reference to the applications that in view of the medical certificate of Dr (Lieut. Col.) P.K. Khanna, V.S.M., the delay in the filing of the Revision Petitions was condoned subject to just exceptions. The learned counsel for the respondents has submitted that the petitioners had not shown good cause for condonation of delay. After hearing the learned counsel for the parties, I find that this contention must be repelled. In the first place, in view of the fact that two Revision Petitions impugning the very orders had been filed earlier by the opposite parties and were pending disposal in this Court, the point raised by the petitioners in the present Revision Petitions could well have been argued even in the earlier Revision Petitions. This apart, by furnishing the medical certificate of a wellknown Cardiologist of Sir Gang Ram Hospital, the genuineness of which cannot be doubted, the petitioners have shown sufficient cause for condonation of delay in filing the Revision Petitions. As stated to the affidavit sworn by R. Kant petitioner he had suffered a heart attack on September 13, 1983 and after being examined by the abovementioned Cardiologist, he was advised complete bed rest for twelve weeks. It was further averred that the petitioner was able to undertake a journey to Chandigarh on December 10, 1983 and on the next date he was advised by his counsel at Chandigarh that a Revision Petition should be filed against the impugned orders in so far as it adversely affected the rights of the petitioner. Furthermore, the delay is hardly of about twenty days and in view of the circumstances noticed above, the delay stands condoned.

On the merits of the case, the grievances made by both the parties in their respective Revision Petitions, if formulated would be as follow :

(a) the contention on behalf of Sant Lal and others and Jiwan Singh and others, rightholders is that the finding of the lower appellate Court to the effect that it was R. Kant who was in possession of the disputed property, is erroneous ; and

(b) the contention on behalf of R. Kant is that the lower appellate Court, after finding that he was in continuous possession of the suit land, and granting the relief of temporary injunction in his favour, could not attach a string to this order by directing that the nature of the land shall not be altered pending the disposal of the suits.

Both the above points require independent scrutiny.

In so far as the contention as contained in point (a) is concerned, the salient facts which have been succinctly and properly considered by the learned Additional District Judge are these : (i) For the purpose of deciding as to whether a party was entitled to the relief of temporary injunction, the trial Court was required only to see whether a prima facie case existed in favour of the party claiming the relief. This prima facie case was in favour of R. Kant. (ii) The balance of convenience lay in favour of R. Kant (ii) The plaintiff R. Kant would suffer an irreparable loss in case temporary injunction is not granted.

In coming to the abovementioned conclusion, the lower appellate Court took notice of the fact that it was R. Kant who had purchased the property in dispute by means of seven Sale Deeds between the period February 26, 1975 and January 23, 1977. In all these Sale Deeds which were on the record of the case, there was recital that physical possession of the land had been delivered to R. Kant by the vendors. The second piece of evidence which was considered by the lower appellate Court is the copy of Khasra Girdawari for Rabi 1978 to Kharif 1981, wherein R. Kant was shown to be in possession of the suit land. The third document in the same context is the copy of the Jamabandi for the year 197677 in which the name of R. Kant appeared in the column of cultivation by virtue of the purchase of land by means of the Sale Deeds abovementioned. Another piece of documentary evidence which was considered by the lower appellate Court, was a copy of the letter, dated July 31, 1981, as per which the Director, Town and Country Planning Department, Haryana, informed R. Kant and Special Secretary to the Government of Haryana, Town and Country Planning would pay a visit to the site in dispute on July 13, 1981, in connection with the establishment of a Film Studio Complex and allied contructions of Khasra Nos. 9 to 16. It was in the wake of all this material that the lower appellate Court found the necessary ingredients of law fully satisfied so as to entitle R. Kant the relief of temporary injunction.

On behalf of the rightholders, their learned counsel submitted that no relief ought to have been granted to R. Kant as he had failed to establish or show that his vendors were in actual possession of the suit land and that the possession of R. Kant over the suit land subsequent to the Sale Deeds would not arm him with the necessary possessory title. The learned counsel further sought to take the aid of two mutations Nos. 1267 and 1271 relating to the land in dispute by making reference to the same with the aid of their certified copies. As this was not objected to by the learned counsel for the opposite party, the said mutations were allowed to be referred to. The relevant exatract or these two documents, if translated in English would run as follows :

"According to the entry in the last Jamabandi, this land is Shamilat deh. The respective shares of the rightholders are mentioned in the Jamabandi. The area constituted by the land to be mutated by means of Sale Deed/Patta is in accordance with the share and in possession of the alienors. The alienors are entitled to execute the Sale Deed/Lease Deed. ... ... ... A number of rightholders have already alienated their shares in the shamilat land by sale/lease."

In view of the observations extracted above, the Revenue Officer, i.e. Assistant Collector First Grade granted the mutations in respect of the Sale Deeds. The documents, i.e. the mutations referred to above, go a long way to show prima facie that the land sold by the respective rightholders to R. Kant was not only in accordance with their permissible shares but they were also in possession of the same at the time of the Sale Deeds. The other material, i.e. the copies of the Khasra Girdawris and the Jamabandi can, thus, be taken as a strong piece of corroborative evidence of his possession over the suit land. The lower appellate Court was quite correct in observing that the trial Court had gone astray in going so deep in the matter and coming to a conclusion that all the documents produced by R. Kant were fictitious. It was rightly considered that without an iota of evidence having been led by either party, there was no occasion for the trial Court to record such a final verdict which was bound to prejudice the case of one of the parties even before the trial of the case had concluded. The verdict of the lower appellate Court in regard to point (a) in favour of R. Kant must, therefore, be upheld.

In view of this conclusion, Civil Revisions Nos. 2833 and 2834 of 1983 merit dismissal.

Coming now to point (b), which is the subjectmatter of the claim in Civil Revisions Nos. 3199 and 3200, of 1983 filed by R. Kant, what is required to be considered is as to whether the lower appellate Court was justified in imposing a condition that the nature of land was not to be altered during the pendency of the suits. For this purpose, what has to be kept in mind is the balance of convenience. R. Kant being found prima facie to be in actual possession of the property purchase by him from the rightholders who, in turn, were the rightful owners of the lands and were in actual possession thereof, there was hardly any occasion to place a retriction on the rights of the vendee to deal with the land in the manner as he desired. The learned counsel for the rightholders has submitted that in case the vendee raised any construction on the land it may complicate the matter in so far as the other rightholders are concerned, as every rightholder is supposed to have share in the entire shamilat area. It is, thus, argued that the balance of convenience should be held to be in favour of the rightholders and not in favour of R. Kant. The argument is not tenable. As noticed even by the Revenue Authorities which sanctioned the mutations, the vendors were in possession of their respective shares which they sold to R. Kant for due consideration. There is ample authority for the proposition that a cosharer in exclusive possession of a portion of an undivided holding, can transfer it subject to adjustment of rights of other cosharers at the time of partition. In Sukh Dev v. Parsi and others, AIR 1940 Lahore 473, the factual situation was absolutely in pari materia with the one in the present case and the above proposition of law was laid down by a Division Bench consisting of no less illustrious Judges than Tek Chand and Bhide, JJ. This rule of law was affirmed by this Court in Pishore Singh v. Shrimati Lajo Bai etc., 1974 Current Law Journal 626, in which the facts were once again analogous to those in the present case. A cosharer in the land in dispute had exchanged the said land with another person who had commenced the construction of a factory building. Relying upon an earlier decision of this Court in Tek Singh v. Jaswant Singh, 1971 PLJ 656, it was held that a cosharer in exclusive possession of the site has every right to transfer that site to a third person who would acquire a valid title thereto subject, however, to the right of the other cosharers to have their respective shares assured to them on partition. It was further held that the raising of a construction on the disputed land could not be said to cause any injury as the rights of the other cosharers were protected by making suitable adjustments at the time of the partition. In face of these authorities and the various facts noticed above, the lower appellate Court was not justified in directing that "status quo regarding suit property be maintained till the decision of the suit and its natrue should not be changed by defendants 1 and 2 (plaintiffs in connected Revision Petitions) till then." This part of the order of the lower appellate Court is consequently set aside.

In the result, Civil Revision Nos. 2833 and 2834 of 1983 are dismissed, while Civil Revisions Nos. 3199 and 3200, of 1983 are allowed in the terms as stated above. The parties have already burdened themselves with sufficient costs because of this litigation. There shall, therefore, be no order as to costs in all the four Revision Petitions. The parties, through their learned counsel have been directed to appear before the trial Court on January 30, 1984.

During the course of the arguments, the learned counsel for the rightholders expressed a strong apprehension that in case the present litigation from which the Revision Petitions have arisen, is prolonged, it may create unnecessary complications inter se the parties. A prayer was, therefore, made for the issuance of a direction to the trial Court for the disposal of the suits within a specified period. The prayer is quite reasonable and it is directed that the suits from which the present Revision Petitions have arisen, shall be disposed of by the trial Court within six months from the date on which the parties have been directed to appear before the trial Court for further proceedings in the case.