Kuldip Malik and Another vs Balle Ram and Others

L.N. Mittal, J.—Defendants No. 17 and 18 have filed this revision petition under Article 227 of the Constitution of India impugning judgment dated 18.08.2011 (Annexure P-4) passed by learned Additional District Judge, Gurgaon. Respondent No. 1-plaintiff Balle Ram has filed suit against respondents No. 2 to 17 as defendants No. 1 to 16 and against petitioners as defendants No. 17 and 18 and against Naib Tehsildar as defendant No. 19, but Naib Tehsildar is not party to the instant petition and was not party before the lower appellate court.

Plaintiff alleged in the suit that he is in possession of the suit property depicted by letters ABCD in site plan annexed with the plaint since the time of his forefathers and the suit property is being used as residential house. It is part of Khasra No. 4/3 measuring 01 kanal 09 marlas. Construction was raised by plaintiffs forefathers without any objection from the then owner (predecessor of defendants No. 1 to 15). The plaintiff claimed to be in established possession of the suit property.

Defendants No. 1 to 15 transferred the land to defendant No. 16, who further transferred it to defendants No. 17 and 18. Defendants No. 17 and 18 filed suit for partition of the land in the Court of Naib Tehsildar-cum-Assistant Collector 1st Grade, who accordingly partitioned the land of Khasra No. 4/3. In execution of the partition decree, defendants No. 17 and 18, in connivance with defendant No. 19, wanted to dispossess the plaintiff from the suit property. The plaintiff, by filing suit, sought declaration that the partition proceedings are illegal and without jurisdiction and result of fraud and collusion. Plaintiff also claimed permanent injunction restraining defendants No. 17 to 19 from demolishing the residential house existing in the suit property illegally and forcibly without seeking decree for possession from the Civil Court. Temporary injunction to the same effect, during pendency of the suit, was claimed by the plaintiff by moving separate application.

It appears that defendants No. 17 and 18 only contested the suit and the application for temporary injunction and broadly denied the averments of the plaintiff. It was pleaded that defendants No. 17 and 18 are owners as well as in possession of the suit property. Existence of any construction of the plaintiff in the suit property was denied. Possession of the plaintiff was also denied. It was pleaded that pursuant to partition decree, defendants No. 17 and 18 are entitled to take possession of the suit land.

Learned trial court, vide order dated 10.09.2010 (Annexure P-3), dismissed the plaintiffs application for temporary injunction. However, appeal against the said order preferred by the plaintiff has been allowed by learned Additional District Judge, vide impugned judgment (Annexure P-4), and thereby, defendants No. 17 to 19 have been restrained from dispossessing the plaintiff from the suit land and from demolishing the residential house of the plaintiff existing there, during pendency of the suit. Feeling aggrieved, defendants No. 17 and 18 have filed this revision petition to challenge judgment (Annexure P-4).

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

Counsel for the petitioners contended that the plaintiff has no right, title or interest in the suit property and the petitioners, being owners thereof, are entitled to take possession thereof in execution of the partition decree.

The aforesaid contention cannot be accepted in the facts and circumstances of the instant case. Admittedly, plaintiff herein was not party to the partition proceedings before the Revenue Court. Consequently, partition decree passed by the Revenue Court is prima facie not binding on the plaintiff. On the other hand, plaintiff''s possession over the suit property (only a part of 01 kanal 09 marlas land and not the entire land) is proved because on the application of petitioners themselves, Local Commissioner was appointed to report about existence of constructions raised by different persons in different parts of the aforesaid land, including existence of construction of the plaintiff over the suit land. The very fact that construction raised by the plaintiff or his predecessors is existing in the suit property would depict that plaintiff is prima facie in long established possession of the suit property. Consequently, he cannot be dispossessed therefrom in execution of the partition decree, although in execution thereof, petitioners may take symbolic possession of the suit property if the same has fallen to their share. On the other hand, for taking actual possession of the suit property from the plaintiff, petitioners have to seek decree for possession against him from the Civil Court.

In the aforesaid circumstances, temporary injunction has been rightly granted in favour of the plaintiff by the lower appellate court. Impugned judgment of the lower appellate court, therefore, does not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The revision petition is meritless and is accordingly dismissed. However, nothing observed herein before shall be deemed to be expression of opinion on merits of the suit.