Pawan Kumar vs Surat Ram and Others

L.N. Mittal, J.

C.M. No. 17630-CII of 2013:

Application is allowed and Annexures P-3 to P-12 are taken on record, subject to all just exceptions.

Main Case:

Defendant Pawan Kumar has filed this revision petition under Article 227 of the Constitution of India impugning judgment dated 01.09.2012 (Annexure P-2) passed by learned Additional District Judge, Ambala.

Respondents/plaintiffs have filed suit against the defendant/petitioner for permanent injunction restraining the defendant from raising any construction in the suit land till partition thereof. The plaintiffs alleged that both the parties and others are co-sharers in possession of the suit land, but the defendant wanted to raise construction of marriage palace on prime portion of the suit land, without partition of the joint land. Plaintiffs sought permanent injunction restraining the defendant from raising any construction in the suit land till the partition of the suit land. Plaintiffs also claimed temporary injunction to the same effect during pendency of the suit by moving separate application.

The defendant broadly denied the plaint averments. It was pleaded that plaintiff No. 1 had leased out some land to M/s. M.G. Screening Plant and possession of specific Khasra numbers, mentioned in paragraph 3 of the written statement, was delivered and accordingly, Screening Plant was installed there. The defendant is in possession of specific Khasra numbers, as per his share and has right to raise construction in the said land, as per his choice. Various other pleas were also raised.

Learned trial court, vide order dated 26.05.2012 (Annexure P-1), dismissed the plaintiffs'' application for temporary injunction. However, appeal against the said order preferred by the plaintiffs has been allowed by learned Additional District Judge, vide judgment dated 01.09.2012 (Annexure P-2), and thereby, application filed by plaintiffs for temporary injunction has been allowed and defendant has been restrained from raising any construction in the suit land till decision of the suit. Feeling aggrieved, defendant has filed this revision petition to assail the impugned judgment Annexure P-2 passed by the lower appellate court.

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

Counsel for the petitioner vehemently contended that plaintiff No. 1 Surat Ram had leased out land to defendant''s firm vide lease deed dated 07.10.2005 (Annexure P-12) for ten years and had delivered possession of specific Khasra numbers to the defendant''s firm, as mentioned in the written statement and the lease period has not yet expired, and therefore, defendant is in possession of the said land. The contention is completely irrelevant and misconceived because the Khasra numbers mentioned in the lease deed, of which possession was allegedly given by plaintiff No. 1 to the defendant''s firm, is not part of the suit land. Consequently, the said lease deed has no relevance to the disposal of the instant revision petition.

Counsel for the petitioner next contended that plaintiff No. 1 had exchanged his share in the suit land with Kamlesh, vide mutation Annexure P-6, and therefore, he is left with no share. However, this argument is completely beyond the pleadings of defendant in his written statement (Annexure P-5). Even otherwise, this argument does not help the defendant in any manner because it pertains to share of plaintiff No. 1 only and not to share of plaintiffs No. 2 to 4. Even otherwise, title of the suit land is not in issue in the instant revision petition. The revision petition pertains to question of temporary injunction depending on possession over the suit land. Admittedly, plaintiffs are co-sharers in the suit land. According to the revenue record, there is no exclusive possession of any co-sharer over any part of the suit land.

On the contrary, the defendant claims to have obtained seven kanals out of the suit land through gift deed Annexure P-11 executed by Roshan Lal. However, even according to the said gift deed, only a share in the joint land was gifted to the defendant. It is not recited in the gift deed that possession of any specific Khasra numbers, out of suit land, was given by the donor to the defendant-donee. On pointed and repeated inquiry, counsel for the petitioner failed to refer to any material to depict that the defendant-petitioner is in exclusive possession of any part of the suit land. On the other hand, it is highly significant to notice that in the written statement, the defendant vaguely pleaded in paragraph 4 on merits that he is in possession of specific Khasra numbers, as per his share. However, he failed to specify any such Khasra number, which was in his exclusive possession.

It is thus apparent that defendant is prima facie not in exclusive possession of any part of the suit land. Consequently, without partition of the joint land in suit, the defendant has no right to raise construction of marriage palace or any other construction in any part of the suit land. He has been rightly injuncted from doing so by the lower appellate court. There is no perversity, illegality or jurisdictional error in the impugned judgment of the lower appellate court so as to call for interference in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is completely frivolous and meritless and is accordingly dismissed. However, nothing observed herein before shall be construed as expression of opinion on merits of the suit. Civil Miscellaneous applications, if any pending, stand disposed of as infructuous.