Rati Ram vs Ramesh and Another

Paramjeet Singh, J.

CM No. 18983-CII of 2013

Learned counsel for applicants-respondents states that documents annexed with the application are already placed before the trial Court. Allowed subject to all just exceptions. Annexures R-1 to R-3 are taken on record.

CR No. 5246 of 2013

Instant civil revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 03.07.2013 (Annexure P-4) passed by learned Additional District Judge, Faridabad whereby order dated 30.11.2012 (Annexure P-3) passed by learned Civil Judge (Jr. Divn.), Faridabad in an application filed by the petitioner-plaintiff under Order 39 Rules 1 and 2 of the CPC (in short "the CPC") has been modified.

Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that the petitioner-plaintiff filed suit for permanent injunction restraining the respondents-defendants from raising construction over specific portion of the suit land by referring to various khasra numbers mentioned in the plaint, situated within the revenue estate of village Machhgar, Tehsil Ballabgarh, District Faridabad and also prayed for restraining the respondents from alienating specific khasra number without getting it partitioned. Along with the suit, an application under Order 39 Rules 1 and 2 CPC was also filed which was allowed by trial Court vide order dated 30.11.2012 and respondent No. 1-defendant No. 1 was restrained from alienating the suit property more than to the extent of his share and raising further construction till disposal of the suit. The appeal against this order was partly accepted vide order dated 03.07.2013 and the impugned order restraining respondent No. 1 to raise further construction was set aside to that extent. Hence, this revision petition.

I have heard learned counsel for the parties and perused the record.

Admitted facts of the present case are to the effect that partition proceedings in respect of suit land are already pending before A.C.-IInd Grade. Besides this, there is some writing dated 01.06.2006 (Annexure R-1) purporting to be panchayati settlement allegedly as per which the parties have been put into specific possession of particular piece of land. Although in the writing dated 01.06.2006 (Annexure R-1), no specific khasra number has been mentioned and it does not show possession of parties on specific khasra numbers, however, dimensions are mentioned which can be appreciated only after leading evidence by the parties before the trial Court. Be that as it may, it is admitted by the petitioner during the course of arguments before learned Appellate Court that they have been in specific possession of specific part and construction of shops has been carried out by them in some part of suit land abutting the main road. He has also admitted that after the said settlement/private partition, a portion of land has been acquired by the State Government and there is an apprehension that the said shops which adjoin the acquired property may also be acquired in future.

It is clear from material on record that the parties are in possession of specific portion of the suit property, although, the partition by metes and bounds has not been effected, nor reflected in revenue records. Moreover, the petitioner has raised the construction on some portion of the suit land; the petitioner cannot approbate and reprobate, once he has himself constructed the shops on some part of land. The fact remains that the parties to some extent are in possession of exclusive portion of suit land. The learned lower Appellate Court has specifically observed that any construction raised by either of the parties after filing of the suit shall be at risk and responsibility of that party and will be subject to partition which will be carried out by A.C.-IInd Grade.

In view of this, there is no illegality or perversity in the impugned order. It is however made clear that in partition proceedings, the parties will not be allowed to raise objection that the construction has been raised on some portion and it should be excluded from the partition. The construction is being raised during the pendency of partition proceedings before the revenue authorities, therefore, the plea that constructed part be excluded from partition shall not be entertained by any revenue authority. With the above said clarification, the instant petition is disposed of.