M/s. SAS Leasing Pvt. Ltd. and Others vs Kamla and Others

L.N. Mittal, J.—Defendants, by filing this revision petition under Article 227 of the Constitution of India, have assailed order dated 03.04.2013 Annexure P-2 passed by the trial Court and judgment dated 30.08.2013 Annexure P-1 passed by the lower Appellate Court, thereby granting temporary injunction to respondents/plaintiffs restraining the defendants/petitioners from raising construction over the suit land till partition by metes and bounds or during pendency of the suit and dismissing application filed by defendants/counter claimants for temporary injunction restraining the plaintiffs from interfering in possession of the defendants over the suit land during pendency of the suit. Case of the plaintiffs is that they were cosharer in joint possession of land measuring 9 bighas 4 biswas. Out of it, 3 bighas 3 biswas 4 biswansis land has been acquired and the remaining suit land measuring 6 bighas 0 biswa 16 biswansis is still joint and plaintiffs are cosharers in joint possession thereof and they have 43/184 share in it. However, the defendants, who are also cosharers in the suit land, want to encroach upon and raise construction on specific portion of the suit land which has not yet been partitioned. The plaintiffs sought permanent injunction restraining the defendants from doing so. Temporary injunction to the same effect was also claimed by the plaintiffs during pendency of the suit.

The defendants controverted the averments of the plaintiffs and pleaded that there was oral private partition with Sultan Singh (predecessor of the plaintiffs) immediately after defendants purchased 7 bighas 1 biswa land out of 9 bighas 4 biswas land from other cosharers and the entire land measuring 2 bighas 3 biswas which came to share of Sultan Singh was included in acquired land measuring 3 bighas 3 biswas 4 biswansis and, therefore, plaintiffs are left with no right, title and interest in the remaining suit land. It was also pleaded that defendants have already obtained license from the competent authority. Defendants claimed to be in exclusive possession of 7 bighas 1 biswa land purchased by them including portion thereof which has been acquired. Accordingly, defendants made counter claim and sought injunction against the plaintiffs, seeking to restrain them from interfering in possession of the defendants over the suit land.

Defendants also claimed temporary injunction to the same effect during pendency of the suit.

Both the Courts below have granted temporary injunction in favour of the plaintiffs and have declined to grant temporary injunction in favour of defendants. Feeling aggrieved, defendants have filed this revision petition to assail orders of both the Courts below.

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

Counsel for the petitioners vehemently contended that the plaintiffs have filed suit for possession and, therefore, they are out of possession. It was also argued that in view of oral partition effected by predecessor of the plaintiffs, the plaintiffs are not in possession of any part of 7 bighas 1 biswa land purchased by the defendants. It was also submitted that defendants are already raising construction in the suit land and they should be permitted to raise the same at their own risk and responsibility. Reliance has been placed on unreported judgment dated 03.07.2012 passed by this Court in CR No. 7788 of 2011 titled Rattan Singh versus Kehar Singh and another.

I have carefully considered the aforesaid contentions, which are completely misconceived and meritless. Perusal of jamabandi Annexure P-3 for 2006-07 reveals that both the parties are cosharers in joint possession of the suit land. Accordingly, plaintiffs are also cosharers in joint possession of the suit land. There is not even a shred of material on record to depict the alleged oral partition effected by plaintiffs'' predecessor. The same was also not incorporated in the revenue record. It is also not mentioned as to when the said partition was actually effected although it has been vaguely pleaded that it was effected immediately after the defendants purchased 7 bighas 1 biswa land. However, there is not even an iota of material on record to depict that there was any such oral partition or that defendants are in exclusive possession of 7 bighas 1 biswa land. On the contrary, in view of revenue record, both the parties are cosharers in joint possession of the suit land. In view thereof, judgment in the case of Rattan Singh (supra) has no applicability to the facts of the instant case because in that case, separate possession of defendant no. 1 was recorded over part of the land and separate possession of plaintiff along with two other cosharers was recorded on other part of the land. Thus, in that case, defendant no. 1 was prima facie in exclusive possession of part of the joint suit land. However, in the instant case, prima facie, the defendants are not in exclusive possession of any part of the suit land. In fact, judgment in the case of Rattan Singh (supra) should not have been cited in view of aforesaid material distinction in the facts of the said case vis-�-vis the facts of the instant case.

The mere fact that defendants have obtained license from the competent authority would have no bearing on the rights of the plaintiffs. If behind the back of the plaintiffs, the defendants have obtained license, it is not explained as to how plaintiffs are bound by the same.

Insofar as suit filed by plaintiffs for possession by partition is concerned, it does not mean that plaintiffs are in joint possession of the suit land as cosharers. On the contrary, by seeking partition, they are seeking separate possession of the suit land of their share. Mere filing of suit by plaintiffs for separate possession by partition does not mean that defendants are in exclusive possession of any part of the suit land. On the contrary, when the joint land is in joint possession of all the cosharers, a cosharer seeking partition thereof has to seek the relief of separate possession of his share in the suit land by partition by metes and bounds. Same is the position in the instant case. It does not help the defendants in any manner to depict their prima facie exclusive possession over the suit land.

The contention that defendants have started construction in part of the suit land would rather go against the defendants because the plaintiffs apprehended and were threatened by the defendants that they would raise construction, necessitating the filing of the suit seeking injunction. Defendants have no right to raise construction on any specific portion of the suit land without partition.

The contention that the defendants were given exclusive possession by the vendors cannot be accepted because the alleged oral partition by plaintiffs'' predecessor was allegedly effected after sale deeds in favour of the defendants. Vendors of the defendants themselves were not in exclusive possession of any part of the suit land and, therefore, they could not have delivered exclusive possession thereof to the defendants.

For the reasons aforesaid I find that plaintiffs have made out strong prima face case for grant of temporary injunction in their favour. Balance of convenience also lies in their favour because they cannot be deprived of prime part of the suit land by permitting the defendants to raise construction over specific portion of the joint suit land without partition. Plaintiffs suffer irreparable loss and injury if defendants are allowed to raise construction on any part of the suit. Thus temporary injunction has been rightly granted to the plaintiffs. On the other hand, prima facie, defendants are not in exclusive possession of any part of the suit land and, therefore, they are not entitled to temporary injunction asked for by them. There is no prima facie case or balance of convenience in their favour nor they shall suffer any loss and injury, much less irreparable loss and injury, if temporary injunction asked for is not granted. Resultantly, I find that both the Courts below have rightly exercised concurrent discretion in granting temporary injunction to the plaintiffs and in declining temporary injunction to the defendants. The said discretion does not suffer from any perversity, illegality or jurisdictional error 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 not only meritless but is completely frivolous and deserves to be dismissed with heavy costs so as to curb such frivolous litigation. It appears that defendants being big builders/companies are abusing the process of the Court. Accordingly, the revision petition is dismissed with costs of Rs. 50,000/- to be deposited by the petitioners with the registry of the Court. If the costs amount is not deposited within one month, the case shall be listed for this purpose.