Sukhwinder Kaur and Another vs Sukhwinder Singh and Others

L.N. Mittal, J.—Plaintiffs have filed instant revision petition under Article 227 of the Constitution of India assailing judgment dated 27.7.2009 passed by learned Additional District Judge (Fast Track Court), Fatehgarh Sahib.

Plaintiffs have filed suit for permanent injunction alleging that they are in exclusive possession of suit land measuring 16-1/2 bighas of land comprised in khasra No. 59Min(2-10), 60Min(5-0), 66Min(1-13), 67Min(1-16),54Min(2-5), 55Min(3-7) as co-sharers out of joint land but the defendants who are also co-sharers wanted to dispossess the plaintiffs from the suit land forcibly and illegally and also threatened to alienate specific khasra numbers of joint land and more than their share. The plaintiffs sought permanent injunction in the suit and also sought temporary injunction by moving application till decision of the suit.

The defendants denied the plaint allegations. It was denied that plaintiffs are in exclusive possession of the suit land measuring 16-1/2 bighas. It was pleaded that the suit land is joint land and parties are co- sharers. Defendants No. 1 and 3 to 5 claimed to be in exclusive possession of 20 bighas of land. Defendant No. 2 claimed to be in joint possession with the plaintiffs being co-sharer.

Learned Additional Civil Judge (Senior Division), Amloh vide order dated 21.10.2008 allowed plaintiffs'' application for temporary injunction. However, first appeal preferred by defendants No. 1 and 3 to 5 against the said order has been partly allowed by learned Additional District Judge (Fast Track Court), Fatehgarh Sahib vide impugned order dated 27.7.2009 and thereby temporary injunction restraining the defendants from interfering in possession of the plaintiffs over the suit land measuring 16-1/2 bighas and from dispossessing therefrom has been set aside but temporary injunction regarding alienation has been maintained. Feeling aggrieved, the plaintiffs have filed the instant revision petition.

Learned Counsel for the petitioners vehemently contended that jamabandi for the year 2005-06 records exclusive possession of the plaintiffs over the suit land measuring 16-1/2 bighas as co-sharers and the said entry has been repeated in khasra girdawari for the year 2006-07 i.e. till filing of the suit.

On the other hand, learned Counsel for the respondents contended that dispute is only regarding khasra Nos. 54Min(2-5) and 55Min (3-7) of which khasra girdawari has been corrected in favour of contesting defendants.

I have carefully considered the rival contentions. Perusal of jamabandi for the year 2005-06 reveals that plaintiff No. 1 Sukhwinder Kaur is recorded to be in exclusive possession of 10 bighas 19 biswas land of khasra Nos. 59Min(2-10), 60Min(5-0), 66Min(1-13), 67Min(1-16) whereas plaintiff No. 2 is recorded to be in exclusive possession of the remaining 5 bighas 12 biswas comprised in khasra No. 54Min(2-5) and 55Min(3-7). There is no plea by the contesting defendants that the khasra girdawari has been corrected in their favour nor there is any material on record in support of this contention. However, even assuming it to be true, entries in the jamabandi coupled with the khasra girdawari prima facie reveal that the plaintiffs are in exclusive possession of the suit land and therefore, they cannot be dispossessed therefrom except in due course of law. On the other hand, partition proceedings are already pending and the defendants would be at liberty to seek possession of the land which may be allotted to them in the partition.

For the reasons aforesaid, I find that learned lower appellate court erred gravely in setting aside the temporary injunction regarding possession. The trial court passed well reasoned order based on material on record. Learned appellate court failed to take into consideration the entries in jamabandi and khasra girdawari and failed to appreciate the same. Accordingly, impugned order of the appellate court is unsustainable.

For the reasons aforesaid, the instant revision petition is allowed and impugned order dated 27.7.2009 passed by learned Additional District Judge (Fast Track Court), Fatehgarh Sahib is set aside and order dated 21.10.2008 passed by learned Additional Civil Judge (Senior Division), Amloh is restored. However, nothing observed herein shall be construed as an expression of opinion on the merits of the suit.