Pammi and Another vs Amarjit Singh

L.N. Mittal, J.—Defendants have filed this revision petition under Article 227 of the Constitution of India assailing judgment dated 01.08.2013 (Annexure P-6) passed by the lower appellate court. Respondent-plaintiff has filed suit for permanent injunction alleging that he and his family members are owners in possession of the three suit properties. Defendants have not made any claim regarding properties No. 1 and 2. The dispute is regarding property No. 3 only, besides street/common passage. The plaintiff claimed that his wife Lakhwinder Kaur purchased property No. 3 vide agreement to sell dated 16.08.2005 and came in possession thereof and on her death, the plaintiff and his son have inherited the said property from her and are owners in possession thereof. Defendants have no right, title or interest therein. The plaintiff claimed temporary injunction by moving application (Annexure P-1) seeking to restrain the defendants from encroaching upon any part of the disputed street/common passage and from interfering in peaceful possession of the plaintiff and his family members over the three suit properties and from dispossessing them forcibly and illegally therefrom and from causing any damage to wall of property No. 3, during pendency of the suit.

The defendants resisted the suit and application for temporary injunction and pleaded that property No. 3 was gifted to dargaah of Peer Baba and defendants are only members of Managing Committee of the said dargaah, which is in possession of property No. 3. Defendants also pleaded that there was no alleged Will of property No. 3.

The trial court, vide order dated 21.04.2012 (Annexure P-5), directed both the parties to maintain status quo regarding property No. 3 as well as regarding existence, use and possession over street/common passage in question till decision of the suit. However, in appeal preferred by the plaintiff against the said order, learned lower appellate court, vide impugned judgment dated 01.08.2013 (Annexure P-6), has, while affirming the order of status quo regarding the disputed street, passed by the trial court, also restrained the defendants from interfering in possession of the plaintiff and his family members over the suit properties No. 1 to 3 and from dispossessing them therefrom, during pendency of the suit. Feeling aggrieved, defendants have filed this revision petition to assail judgment (Annexure P-6) passed by the lower appellate court.

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

Counsel for the petitioners emphatically contended that both parties are claiming to be in possession of the suit property No. 3, and therefore, both parties should be directed to maintain status quo regarding possession thereof because it is matter of evidence to depict as to which party is in possession.

I have carefully considered the aforesaid contention, but the same cannot be accepted. The defendants have pleaded that Onkar Kaur, who was admittedly owner of the suit property No. 3, had orally gifted the same to aforesaid dargaah. However, there could be no valid oral gift of immovable property by Onkar Kaur in favour of dargaah. There is not even shred of material on record to substantiate the plea of defendants regarding alleged gift. On the other hand, plaintiff has established prima facie case in his favour regarding suit property No. 3 by way of agreement to sell executed by Onkar Kaur, who was admittedly owner of the suit property, in favour of plaintiff''s wife (since deceased). In view thereof, temporary injunction has been rightly granted in favour of the plaintiff by the lower appellate court because the plaintiff has made out the necessary three ingredients of prima facie case, balance of convenience and irreparable loss and injury for the grant of temporary injunction. There is no perversity, illegality or jurisdictional error in the impugned judgment 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 lacks any merit and is accordingly dismissed in limine. However, it is expressly made clear that nothing observed hereinbefore shall be construed as expression of opinion on merits of the suit.