Joginder Singh and Others vs Panjab Singh and Others

L.N. Mittal, J.—Defendants have filed this revision petition under Article 227 of the Constitution of India assailing judgment dated 04.09.2013 (Annexure P-2) passed by the lower appellate court. Respondents/plaintiffs have filed suit for permanent injunction alleging that they, as co-sharers, are in exclusive possession of the suit land measuring 08 kanals since the time of their fore-fathers, on the basis of oral partition. The defendants, who are also co-sharers, are in possession of other 80 kanals 08 marlas other land, out of the joint land, which is in excess of their share. However, the defendants tried to interfere in possession of the plaintiffs over the suit land, necessitating the filing of the suit. The plaintiffs, by filing application for temporary injunction, sought to restrain the defendants from interfering in possession of the plaintiffs over the suit land, during pendency of the suit.

The defendants resisted the suit and application for temporary injunction and controverted the averments made by the plaintiffs. It was pleaded that there has been no partition of the joint land, and therefore, injunction cannot be issued against the defendants, who are also co-sharers. Various other pleas were also raised.

Learned trial court, vide order dated 25.07.2013 (Annexure P-1), dismissed the plaintiffs'' application for temporary injunction. However, appeal against the said order, preferred by the plaintiffs, has been allowed by learned District Judge, vide impugned judgment dated 04.09.2013 (Annexure P-2), and thereby, application filed by the plaintiffs for temporary injunction has been allowed and defendants have been restrained from interfering in possession of the plaintiffs over the suit land till final decision of the suit except by getting the suit land partitioned through Court or by mutual consent. Feeling aggrieved, defendants have filed this revision petition to assail the said judgment passed by the lower appellate court.

I have heard counsel for the petitioners and perused the case file.

Counsel for the petitioners contended that plaintiffs have not been recorded to be in possession of the suit land in revenue record and even possession of their father, as recorded in the revenue record, was not exclusive, but was along with some other co-sharers. The aforesaid contention does not come to the rescue of the defendants. In the revenue record, including jamabandis for 1997-98 and 2007-08, possession of defendants over the suit land is not recorded. On the contrary, possession of plaintiffs'' predecessors along with some other co-sharers is recorded over the suit land. Consequently, defendants have no right to interfere in possession of the plaintiffs over the suit land, except in due course of law. The plaintiffs, even as co-sharers, are entitled to protect their possession over the suit land and defendants, even as co-sharers, cannot dispossess the plaintiffs from the suit land, except in due course of law, because the plaintiffs including their predecessors are prima facie in established possession of the suit land. In the aforesaid circumstances, temporary injunction has been rightly granted in favour of the plaintiffs by the lower appellate court. There is no perversity, illegality or jurisdictional error in the impugned order of the lower appellate court so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is meritless and is accordingly dismissed in limine. However, nothing observed hereinbefore shall be construed as expression of opinion on merits of the suit.