Mastafa Hussan Sabri Sazda Nassin vs Imran and Others

R.P. Nagrath, J.

C.Ms. No. 3470-71-CII of 2015

Both the applications are allowed as prayed for.

Documents Annexures P-5 to P-8 are taken on record.

C.R. No. 7974 of 2014 (O&M)

The petitioner has invoked revisional jurisdiction of this Court under Article 227 of the Constitution of India, seeking to set aside the order dated 5.9.2014 (Annexure P-4) passed by the District Judge, in appeal whereby the appeal filed by defendant-respondents No. 1 and 3 against the order of the trial Court dated 15.5.2013 (Annexure P-2) on application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (CPC) was allowed and the said application for ad interim injunction stood dismissed. The suit property comprises of 1500 Sq. Yards of the land forming part of khasra No. 1048 total measuring 5 bigha 1 biswa. The suit property is also known as "Takia Do Gut Wala Peer (Taqia Hakht Shah)" which is a dera of eunuchs. The petitioner is stated to be in possession of the said dera since the year 1983. People from various communities come and worship the peer which is being maintained by the petitioner. Earlier the dera was being maintained by Shanti Devi who was residing in the dera and remained in possession thereof for about 20 years. Shanti Devi is stated to have died on 16.9.1983. Even during her life time, Shanti Devi gave this dera to the plaintiff-petitioner who is looking after the dera since then. Defendant-respondent No. 6 in the case is the Improvement Trust. It was stated that the private respondents are out to grab the land of the dera in question.

The case set up by the petitioner in the plaint Annexure P-1 was that the land over which the dera is built belonged to the Punjab Wakf Board which fact is also mentioned in the revenue record but the said land was acquired by the Improvement Trust. However, the site of peer/dera has been excluded from acquisition. In this regard, Secretary, Punjab Wakf Board, also wrote to the Chairman of Improvement Trust that the land which is being recorded as Qaburstan (Takia Hakku Shah) should be excluded from acquisition as it would hurt the religious feelings of Muslims. Even the petitioner filed an application to the Deputy Commissioner, Patiala and the Tehsildar reported the existence of dera over 1500 sq. yards of the land which is being looked after by the plaintiff-petitioner. It was further stated that Sheela was the previous Mahant of the dera who had also executed a Will dated 23.9.1980, in favour of the plaintiff-petitioner.

Respondents opposed the suit as well as the application filed by the petitioner. The private respondents pleaded that entire khasra No. 1048 (5-1) was acquired by the Improvement Trust. The Takia Do Gut Wala Peer along with Masjid known as Takia Hakku Shah along with Madarsa is being looked after by defendant/respondent No. 1-Imran as a Maulvi. Earlier also, the petitioner filed a suit on the same cause impleading defendant/respondent No. 3-Roshan and his son as defendants but that suit was dismissed. The petitioner is said to have concealed the aforesaid material fact.

The defendant/respondent No. 6-Improvement Trust stated that the plaintiff-petitioner is in illegal possession of 1500 sq. yards of this land forming part of Khasra No. 1048 which was acquired for establishment of the scheme known as Sewa Singh Thikriwala Nagar, Patiala. Earlier the land was owned by Punjab Wakf Board and it was purchased from the Board by the Improvement Trust. The construction of dera over the property was illegal and no body has got any right to raise construction over the land.

I have heard learned counsel for the petitioner, carefully perused the orders passed by the Courts below and also the paper-book.

Simply claiming possession over the land belonging to the Improvement Trust, would not have entitled the petitioner for the grant of ad interim injunction. The petitioner earlier filed Civil Suit No. 645 dated 8.9.2004 for permanent injunction against defendant/respondent No. 3-Roshan and his son. That suit pertained to the same property and was dismissed under Order XVII Rule 3 CPC on 28.11.2006. Copy of judgment in that suit is Annexure P-5. The learned trial Court observed that the parties to the instant suit and suit which was filed against defendants No. 2 and 3 are different and whenever there is a threat to right of any person he can file suit for injunction at any time. This is a perverse observation and could not have been approved. The defendants in that suit were defendant No. 3 and his son. In the said suit, the petitioner was unable to produce evidence despite sufficient opportunities and his suit was dismissed in terms of Order XVII Rule 3 CPC. The aforesaid material fact having been concealed by the petitioner would dis-entitle him from the grant of discretionary relief of injunction. There was rather incorrect averment of the petitioner in para No. 15 of the plaint Annexure P-1, wherein it was stated no other suit for the same relief had been filed by the petitioner nor any suit was pending or decided by any Court of law.

Learned counsel for the petitioner submits that the said suit was dismissed in terms of Order XVII Rule 3 CPC and not on merits. I am unable to agree to the above contention because the suit dismissed on merits either after the production of evidence or in terms of Order XVII Rule 3 CPC, is a binding decision between the parties particularly the petitioner.

Learned petitioner''s counsel, however, submitted that possession of the petitioner over the suit land was verified by the Tehsildar. An application dated 21.2.2012 (Annexure P-8) was moved by the petitioner to the Deputy Commissioner, Patiala and on mis application report was made by the Tehsildar that there is a dera over the land measuring 1500 sq. yards out of khasra No. 1048(5-1) which is being looked after by the petitioner. It is, therefore, submitted that the aforesaid fact coupled with the admission of the Improvement Trust should have been sufficient to prima facie establish the case of petitioner. Reference has also been made to the letter of the Punjab Wakf Board addressed to the Chairman of Improvement Trust for not acquiring the land of dera.

I do not think that such kind of documents which could only support illegal occupation over the land of Improvement Trust can be of any significance. The learned Appellate Court has observed as under:--

"The plaintiff has filed the present suit claiming possession over khasra No. 1048(5-1). A perusal of the jamabandi for the year 2006-07 goes to show that the improvement trust, Patiala is shown to be the owner in possession of such khasra No. It is for the reason that revenue official preparing such record in discharge of their official duties have no reason to prepare record contrary to the factual position. Presumption of truth is attached to the entries in the jamabandi under Section 44 of the Punjab Land Revenue Act though such a presumption is rebuttable under Section 44 of the Punjab Land Revenue Act. Here the plaintiff has failed to rebut such - presumption. The trial court without considering the revenue record properly has jumped to the conclusion that the plaintiff is in possession of the suit property stating that defendant No. 6 has admitted such possession but then even if it is taken that the plaintiff is in possession of any part of the suit property is in legal possession or otherwise. The plaintiff has failed to prove that his such possession is legal. Law is well settled that a person in illegal possession of the property is not entitled to injunction against true owners. For that reason also, no case for grant of ad interim injunction was made out, there is growing tendency among the people to encroach upon the public property since most of the time, the official/officers were supposed to look after and maintain such properties do not pay proper attention to their duties. However, the person in wrongful possession can certainly not get stamp of approval from the court by obtaining injunction against true owner. Such wrongful possession cannot be allowed to be propagated, therefore, there is no question of plaintiff suffering any irreparable loss and injury in case ad-interim injunction is not granted. The balance of convenience is certainly not in favour of the plaintiff rather it comes out that the plaintiff is obstructing the development work being carried by the improvement trust. The order passed by the trial Court is perverse and in complete violation of settled principle for grant of ad-interim injunction."

These observations of the learned Appellate Court are quite in conformity with the settled principles of law on the subject. There is no merit in the instant petition and the same is dismissed.