Sukhwinder Singh and Another vs Balbir Singh

L.N. Mittal, J.—Plaintiffs Sukhwinder Singh and his father Mukhtar Singh have filed the instant revision petition under Article 227 of the Constitution of India impugning judgment dated 27.8.2009, Annexure P/1 passed by learned Additional District Judge (Adhoc) Fast Track Court, Gurdaspur thereby allowing appeal of Defendant-Respondent Balbir Singh against order dated 12.9.2006, Annexure P/2 passed by learned Additional Civil Judge (Senior Division) Batala.

Petitioners have filed suit against Respondent for permanent injunction alleging that Petitioner-Plaintiff No. 2 through his son Plaintiff-Petitioner No. 1 is in exclusive possession of the suit land measuring 2 kanals comprised of khasra No. 8R/15/2 and the Defendant who has no right, title or interest in the suit land, claims to have purchased the suit land from a co-sharer. However, mutation on the basis of the said sale deed has not been sanctioned and has been declined by the revenue officers. Defendant threatened to dispossess the Plaintiffs from the suit land. Accordingly, Plaintiffs sought permanent injunction restraining Defendant from interfering in possession of the Plaintiffs over the suit land and from dispossessing them therefrom illegally, forcibly and without due course of law. By moving separate application under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure, Plaintiffs sought temporary injunction to the same effect.

Defendant-Respondent resisted suit and the application and inter alia, pleaded that Plaintiffs are guilty of concealment of material facts. Joint land including the suit land already stands partitioned by the revenue court. In partition, suit land fell to the share of Kabul Singh and others. Defendant has purchased the suit land from Kabul Singh and Avtar Singh and accordingly Defendant is owner in possession of the suit land. Plaintiffs are not in possession of the same. Various other pleas were also raised.

Learned trial court vide order Annexure P/2 allowed Plaintiffs'' application for temporary injunction and restrained Defendant/Respondent from interfering in possession of the Plaintiffs over the suit land and from dispossessing them therefrom illegally, forcibly except in due course of law. However, appeal against the said order preferred by the Defendant has been allowed by learned Additional District Judge vide impugned judgment Annexure P/1 and thereby application for temporary injunction moved by the Plaintiffs stands dismissed. Feeling aggrieved, Plaintiffs have filed the instant revision petition.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the Petitioners vehemently contended that Petitioners are in possession of the suit land and therefore, they are entitled to injunction prayed for. It was also vehemently contended that in mutation proceedings, Respondent was held to be not in exclusive possession of the suit land and mutation in favour of Respondent was cancelled and therefore, Respondent is not even co-sharer in the suit land. It was also pleaded that Petitioners were not aware of the partition proceedings when they filed the instant suit and therefore, there was no concealment by the Plaintiffs.

On the other hand, learned Counsel for the Respondent vehemently contended that in partition proceedings suit land fell to the share of Respondent''s vendors and therefore, Respondent has become owner in possession of the suit land having purchased it through registered sale deed. Partition proceedings were very much in the knowledge of the Plaintiffs when they filed the instant suit. It was also contended that Plaintiff No. 1 had earlier filed civil suit No. 173 of 1995 against Respondent''s vendors and others for permanent injunction. In that suit application for temporary injunction moved by Plaintiff No. 1 Sukhwinder Singh was dismissed by the trial court vide order dated 24.7.1995, Annexure A/3 and thereafter said suit was got dismissed in default vide order dated 28.3.1996, Annexure A/4. Similarly, it is pointed out that Plaintiff No. 2 had filed civil suit No. 354 of 1994 against the Respondent''s vendors and others for permanent injunction. In that suit also application for temporary injunction moved by Plaintiff No. 2 was dismissed by the trial court vide order dated 3.4.1996, Annexure A/5 and thereafter the said suit was also got dismissed in default vide order dated 22.3.1997, Annexure A/6. But all these material facts have been concealed in the instant suit.

I have carefully considered the rival contentions. Plaintiffs are guilty of concealment of material facts. It is not even the case of the Petitioners before the lower courts that they were not aware of the partition proceedings. On the other hand, Defendant-Respondent specifically pleaded the partition proceedings in the written statement and reply to injunction application. The Petitioners were well aware of the partition proceedings before they filed the instant suit. Effort had even been made to seek stay of partition proceedings but Plaintiff No. 2 failed to secure any such order from this Court in pending RSA No. 1317 of 1997. Prior to it Plaintiff No. 1 had filed civil suit No. 173 of 1995 and Plaintiff No. 2 had filed civil suit No. 354 of 1994. Both of them failed to secure temporary injunction in those suits and thereafter both the said suits were got dismissed in default. All these material facts have been concealed in the instant suit and therefore, Plaintiffs are not entitled to discretionary relief of temporary injunction.

Non-sanctioning of mutation in favour of Defendant by the revenue officers has no bearing because mutation does not confer title. On the other hand, Defendant-Respondent acquired title by way of registered sale deed.

For the reasons aforesaid, I find no illegality or jurisdictional error in impugned judgment of the lower appellate court. The Petitioners are guilty of concealment of very material facts in the suit and therefore, they are not entitled to discretionary relief of temporary injunction as they have not come to the court with clean hands. Accordingly, the instant revision petition is dismissed being devoid of any merit.