Ram Kishan and Others vs Sat Pal and Others

Sat Pal, J.—This petition has been directed against the order dated 22.2.1998 passed by the learned Additional District Judge, Narnaul. By this order, the learned Additional District Judge has allowed the appeal filed by the respondent-defendant and has set aside the order dated 7.2.1996 passed by the learned trial court by which the application filed by the petitioners-plaintiffs under Order 39 Rules 1 and 2 was allowed and the respondent- defendants were restrained from raising construction on the suit land.

In the present case the petitioners-ptemtiffs filed a suit for permanent injunction seeking the relief that the respondents-defendants be restrained from raising construction as the land in dispute was joint ownership of the- parties and has not yet been partitioned by metes and bounds. Along with the suit the plaintiffs filed an application under Order 39 Rules 1 and 2 CPC for interim injunction. The learned trial Court vide its order dated 7.2.1996 accepted the application of the plaintiffs under order 39 Rules 1 and 2 CPC and restrained the respondents-defendants from raising construction over specific portion of the suit property which was even in their exclusive possession, till partition was effected by the competent authority in accordance with law. The aforesaid order dated 7.2.1996 was, however, set aside by the learned Additional District Judge, Narnaul vide his order dated 1.2.1996. The learned Additional District Judge observed that the plaintiffs themselves have sold their shares in the suit property to different persons vide sale deeds dated 25.2.1997, 3.4.1997 and 18.9.1997 and as such the plaintiffs cannot be granted any injunction against the defendants from raising the construction on the portion of the land which was in their exclusive possession. It is, however, not disputed that the parties were the joint owner of the suit land and though the order with regard to partition of the land has been passed by the revenue authorities but the instrument of partition has not yet been executed.

Mr. Mittal, the learned counsel appearing on behalf of the petitioners-plaintiffs submitted that the observation given by the learned lower appellate court that the plaintiffs themselves have sold their portion of the land and have even allowed the subsequent vendees the right to raise construction over the land in dispute, was contrary to the facts on record. He submitted that sale deeds dated 25.2.1997 and 30.4.1997 were executed by two of the plaintiffs who have not filed any revision petition against the order passed by the learned lower appellate court and the petitioners have no concern with the said two sale deeds. As regards the sale deed dated 30.4.1997, the learned counsel submitted that the plaintiff No. 1 did not receive payment with regard to the land mentioned in the sale deed as the registration of the sale deed was refused by the Sub Registrar. He further submitted that even otherwise the said sale deed was a fictitious document and this fact has been duly stated by. Ram Kishan (petitioner No. 1 herein) in his affidavit dated 18.3.1998 annexed with CM 3289 of 1998 which has been filed under order 39 Rules 1 and 2 CPC in the present petition. The learned counsel further submitted that a co-owner can not be permitted to raise construction on the land owned jointly till the instrument of partition is executed which in the present case has not yet been executed. In support of his submission, the learned counsel has placed reeliance on a judgment rendered by a Full Bench of this Court in Bhartu v. Ram Sarup 1981 P.L.J. 204 and two Single Bench judgments of this Court reported in Om Prakash and others Vs. Chhaju Ram, and Nazar Mohd. Khan Vs. Arshad Ali Khan and Others, .

Mr. Harbhagwan Singh, the learned senior counsel appearing on behalf of the respondents, however, submitted that two of the plaintiffs have already sold their portion of the land vide sale deeds dated 25.2.1997 and 30.4.1997 and from these sale deeds it is evident that they had made construction on this land. He further submitted that the petitioner No. 1 had also executed sale deed dated 18.9.1997 and had even received the entire amount of consideration as is evident from the sale said deed (copy of which is Annexure R/C/T) but the registration of this sale deed was refused by the Suo Registrar, Mahindergarh due to stay granted by the Civil Court. He further submitted that the document R/C/T further shows that the vendee was allowed to raise any type of construction on the land which was sold vide this sale deed. Lastly, the learned counsel submitted that the respondents were willing to give an undertaking that they will remove the construction in case the suit is decreed against the respondents by the learned trial court.

I have given my thoughtful consideration to the submissions made by the learned counsel of the parties and have perused the records. In the sale deed dated 18.9.1997 which was executed by petitioner No. 1 and the registration of which was refused by the Sub Registrar due to stay, it has been stated that the vendee can raise any type of construction on this very land. This sale deed and the other two sale deeds dated 25.2.1997 and 30.4.1997 further show that some of the plaintiffs themselves have sold their portion of the land. Sale deeds dated 25.2.1997 and 30.4.1997 also show that the plaintiffs had also made construction on their portion of the land though the petitioner No. 1 (who is also one of the plaintiffs) in his affidavit dated 18.3.1998 has vaguely stated that the sale deed dated 18.9.1997 is a fictitious document but from the photo copy of the said sale deed which is on record, I find that prima facie signatures of petitioner No. 1 on the said sale deed are similar on his signatures on the vakalatnama executed by him in favour of his counsel in the present case. In view of these facts, I am of the opinion that the learned lower appellate court has rightly observed that the plaintiffs have themselves sold their share in the property in dispute and have even; given a right to raise construction over the land in dispute to the vendees and as such '' they cannot raise any objection against any construction to be made by the respondents-defendants.

Keeping in view the above discussion and further in view of the undertaking given by the learned counsel of the respondents that they would remove the construction in case the suit is decreed against them, I am of the opinion that the impugned order dated 21.2.1998 passed by the learned Additional District Judges does not call for any interference by this court in its jurisdiction u/s 115 CPC. Accordingly, the petition is dismissed with no order as to costs.

Any observation made hereinabove shall not have any bearing on the merits of the case.