Surinder Kaur and Another vs Suman Dhawan and Another

Laxmi Narain Mittal, J.

C.M. No. 7145.CII of 2012

Allowed as prayed for. Annexures P/1 to P/12 are taken on record subject to all just exceptions.

C.R. No. 1692 of 2012

By filing this revision petition under Article 227 of the Constitution of India, plaintiffs are assailing order dated 24.9.2011 (wrongly mentioned as dated 26.9.2011 in the revision petition) Annexure P/7 passed by the lower appellate court.

Petitioners as plaintiffs have filed suit against respondents as defendants. Plaintiffs by filing application for temporary injunction sought to restrain the defendants from interfering in possession of the plaintiffs over the suit land during pendency of the suit. Learned trial court vide order dated 2.11.2010 Annexure P/6 disposed of the said application by directing both the parties to maintain status quo regarding possession of their respective shares in the suit land till final decision of the, suit.

However, appeal against the said order preferred by defendants has been allowed by learned Additional District Judge vide order Annexure P/7 and thereby status quo granted by the trial court has been set aside.

I have heard counsel for the parties and perused the case file.

Counsel for both the parties claimed that their respective parties are in exclusive possession of the suit land.

I have carefully considered the matter. Concluding paragraph 9 of the impugned order of the lower appellate court is reproduced hereunder:-

In this case also, perusal of the sale deed of the plaintiffs/respondents reveals that they have purchased the share out of joint property. Furthermore, similar position is with regard to sale deed of the defendants (now appellants). So, since both the parties have become co-sharer and there is nothing on record to prove the exclusive possession of any party, as such, the order of status quo granted by the lower court is set aside being illegal in view of above citation titled as Kishore Kumar Khaitan and another v. Parveen Kumar Singh (supra).

Resultantly, present appeal is allowed and disposed of. Record of lower Court be remitted forthwith along with copy of this order. Appeal file be consigned to Record Room.

In view of aforesaid conclusion of the lower appellate court that there is nothing on record to prove exclusive possession of either party on the suit land, the lower appellate court should not have vacated the status quo regarding possession of the suit land ordered by the trial court. On the contrary, in view of aforesaid conclusion of the lower appellate court, status quo regarding possession to be maintained by both the parties was the only order that should have been passed and had been rightly passed by the trial court. Impugned order of the lower appellate court vacating the status quo order granted by the trial court is, therefore, patently perverse and illegal and suffers from jurisdictional error. Resultantly, the instant revision petition is allowed. Impugned order Annexure P/7 passed by the lower appellate court is set aside. Order Annexure P/6 passed by the trial court directing both the parties to maintain status quo regarding possession of their respective shares in the suit land till final decision of the suit stands restored. However, nothing observed herein before shall be construed as expression of opinion on merits of the suit.