Sukhdev Singh vs Mahender Singh and Others

Jaswant Singh, J.—Plaintiff/Petitioner has filed the present petition under Article 227 of the Constitution for setting aside the impugned order dated 1.2.2010 (P4) passed by learned Additional District Judge, Kurukshetra, vide which the appeal filed by the Defendants/ Respondents against the interim injunction dated 23.7.2008 (P3) was partly allowed and Defendants/Respondents were permitted to instal bore (tube well) on the suit land at their own costs.

Briefly stated the facts of the case are that Plaintiff/Petitioner filed a suit for permanent injunction restraining the Defendants/Respondents from digging out the earth from the suit land and not to install bore (tube well) forcibly and illegally. Along with the suit he filed an application under Order 39 Rules 1 and 2 CPC seeking interim injunction. The suit as well as application was contested by the Defendants/Respondents by filing written statement/reply. After hearing both the sides the learned trial court allowed the application vide order dated 23.7.2008(P3) and restrained the Defendants/Respondents from digging out the earth from the suit land and from installing the bore (Tube well) therein till the final disposal of the suit.

Aggrieved against the same, Defendants/Respondents filed an appeal and the same was partly allowed by the learned Additional District Judge, Kurukshetra vide impugned judgment dated 1.2.2010 (P4). Hence the present revision petition by the Plaintiff/Petitioner.

It is submitted by the learned Counsel for the Plaintiff/Petitioner that the learned appellate court has grossly erred while partly allowing the appeal of the Defendants/Respondents and has caused great prejudice to the Plaintiff/Petitioner in view of the fact that land in dispute already stands redeemed in his favor vide order dated 28.6.2007 (P5) passed by learned Assistant Collector Ist Grade, Pehowa. It is further argued that Defendants/ Respondents are claiming themselves to be in possession through the mortgagee-Surinderjit Kaur and once the mortgage itself stands redeemed the Defendants/Respondents have no right over the land in dispute.

On the other hand learned Counsel for the Defendants/Respondents has strongly defended the order passed by the learned appellate court and has argued that in fact, the Plaintiff/Petitioner had already suffered a decree dated 19.7.1985 in favor of one Jagdish Chand and on the basis of that decree mutation No. 526 was sanctioned and the land in dispute was exchanged with said Jagdish Chand and that judgment and decree has not been set aside so far, therefore, Plaintiff/Petitioner has no right, title or interest in the suit property. It is further argued that Defendants/Respondents are cultivating the suit land on behalf of mortgagee-Surinderjit Kaur.

After hearing learned Counsel for the parties, this Court is of the view that the impugned order is liable to be set aside. Undoubtedly, the land in dispute already stands redeemed vide order dated 28.6.2007 (P5) by learned Assistant Collector Ist Grade, Pehowa, wherein it is clearly mentioned that Plaintiff/Petitioner has deposited the mortgage amount of Rs. 45,000/-on 11.5.2007 in the bank and consequently, the land was ordered to be redeemed and it was further ordered that the possession of the land be given to the Plaintiff/Petitioner and in case the same is not vacated a right of possession by filing an execution application was also granted. It is not disputed by the learned Counsel for the Defendants/Respondents that the order dated 28.6.2007 has not been challenged so far. The Defendants/Respondents are claiming themselves to be in possession through erstwhile mortgagee-Surinderjit Kaur and once the land itself stands redeemed in favor of the Plaintiff/Petitioner, then there is no question of possession of Defendants/Respondents over the suit land because they are not claiming themselves to be tenants of the Plaintiff/Petitioner. The perusal of paragraph 10 of the judgment passed by the learned Additional District Judge is contradictory as on one hand it says that judgment and decree dated 19.7.1985 was passed in favor of one Jagdish Chand and on the basis of that a mutation was sanctioned and on the other hand it is saying that the suit land is being cultivated by the Defendants/Respondents on behalf of mortgagee-Surinderjit Kaur. If this is to be accepted that the land in dispute already stands transferred in the name of one Jagdish Chand on the basis of judgment and decree dated 19.7.1985, then there is no occasion for remaining the Defendants/Respondents in possession through said Smt. Surinderjit Kaur. Thus it is evident that Defendants/Respondents have no right, title or interest in the suit land and as such they cannot be permitted to instal bore (tube well) in the suit land.

For the reasons stated above, present revision petition is allowed and the impugned order dated 1.2.2010 (P4) is set aside and the order dated 23.7.2008 (P3) passed by the learned trial court is restored.