Madho Ram vs Guddu & Anr

Jyotsna Rewal Dua, J

Petitioner’s application to restrain the defendants from interfering over Khasra No.608 has been dismissed by both the learned Courts below, hence this petition.

Civil Suit was instituted by the plaintiff (petitioner) praying for decree of perpetual and prohibitory injunction to restrain the respondents from interfering, raising construction by narrowing down the path, cutting trees, causing nuisance over the suit land. The suit land was comprised in two Khasra Numbers viz. Khasra Nos.610 and 608. It was the pleaded case of the plaintiff that Khasra No.608 was entered in the revenue record as abadi deh. He alleged that the said khasra number was jointly owned and possessed by him and defendants. Khasra No.610 was projected to have been entered in the revenue record as raasta share-aam, jointly owned and possessed by the plaintiff and other share-holders.

The plaintiff raised the grievance that the defendants had collected the construction material over the suit land. They intended to encroach and occupy valuable portion of the path and abadi deh. The plaintiff would suffer irreparable loss and injury, in case, defendants were not restrained from doing so.

Alongwith the civil suit, the plaintiff moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, praying for grant of temporary injunction. The grounds put forth were the same as pleaded in the plaint.

The defence was that the defendants were exclusive owners in possession of Khasra No.608. Their houses were located over Khasra No.608. Plaintiff had no right, title or interest over Khasra No.608. The defendants pleaded that the plaintiff was complete stranger to Khasra No.608. With respect to allegations of raising construction, the defendants took up the stand that their houses over Khasra No.608 were standing for the last many years. Neither any construction material was lying on the spot nor defendants had any intention to raise any construction over the suit land.

Vide order dated 21.12.2020, learned Trial Court took note of joint statements of learned counsel on both sides that they have no objections, if status quo, qua nature, construction and possession is maintained over the suit land, except qua renovation or maintenance of house. However, on the basis of jamabandi for the years 2015-16, learned Trial Court observed that the plaintiff failed to prove his title over Khasra No.608. Accordingly, the parties were directed to maintain status quo, qua construction, nature and possession over Khasra No.610 of the suit land except qua renovation and maintenance of the house over the suit land.

The plaintiff preferred appeal against the aforesaid order of the learned Trial Court. Learned First Appellate Court held that as per jamabandi for the years 2015-16, Khasra No. 608 was recorded as abadi deh land. That there was nothing in the revenue record to show that the plaintiff was owner in exclusive possession of Khasra No.608. The photographs produced by the plaintiff in support of his plea concerning carrying of construction activities were also noticed by the learned First Appellate Court with the observation that as per the photographs, the construction activities was not on any passage but in the court-yard of the already existing house. Therefore, the claim of the plaintiff that construction would narrow down the passage was held to be falling short of establishment of prima facie case. It was held that there was no record of existence of any path over Khasra No.608. The plaintiff had not annexed any site plan to identify the alleged construction and the land underneath. The revenue record depicting Khasra No.608 as abadi land was supported by the plaintiff. It was held that it could not be deciphered that the valuable portion of suit land was on the verge of encroachment by the defendants. Learned First Appellate Court also observed that the record did not show that the defendants had intention to change its nature by covering any valuable portion thereof.

In the aforesaid background, the petitioner has instituted the present petition invoking jurisdiction under Article 227 of the Constitution of India for assailing the orders passed by learned both the Courts below dismissing his application under Order 39 Rules 1 and 2 CPC.

During hearing of the case, learned counsel for the respondents submitted that he is under instructions to state that the defendants have no objections, in case, status quo order passed by the learned Trial Court on 21.12.2020 w.r.t. Khasra No. 610 as affirmed by learned First Appellate Court on 30.04.2022 is extended to Khasra No.608 as well, however, with a rider that the respondents be permitted to carry out renovation or maintenance of their houses existing over the said khasra number (Khasra No. 608).

Learned counsel for the petitioner (plaintiff) accepts this proposal.

In view of the nature of controversy between the parties, in light of the afore observed facts and in view of the statements made by learned counsel for the parties, the parties are directed to maintain status quo qua nature, construction and possession over the suit land (Khasra No.608), however, this order shall not come in the way of the parties to renovate or maintain their houses constructed over these khasra numbers.

The impugned orders passed by the learned Trial Court as well as by learned First Appellate Court shall stand modified to the extent indicated above.

With these observations, the instant petition is partly allowed and disposed of .Pending application(s), if any, shall also stand disposed of.

It is clarified that observations made in this judgment shall remain confined only to the adjudication of the present petition and will not be construed as an opinion on merit.