C.R. No. 542 of 2009 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 542 of 2009 (O&M)
Date of decision: January 31, 2009
Gurudwara Guru Nanak Dev Ji
and another
.. Petitioners
v.
Sukhdev Singh and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. S. S. Salar, Advocate for the petitioners.
...
Rajesh Bindal J.
Challenge in the present petition is to the order dated 17.1.2009,
passed by the learned court below, whereby that of the trial court in the application
filed by the petitioners under Order 39 Rules 1 and 2 of the Code of Civil
Procedure was set aside and the interim injunction application was dismissed.
Briefly, the facts are that the petitioners filed a suit for permanent
injunction restraining the respondents-defendants from interfering into and
dispossessing the petitioners-plaintiffs from peaceful possession of the property in
dispute. The trial court, finding merit in the application, granted interim injunction.
However, the learned lower appellate court reversed the same.
Learned counsel for the petitioners submitted that the property in
dispute is situated within the abadi. The petitioners are in possession thereof since
long where a langar hall, granthi room, kitchen, bath room etc. have been
constructed. The respondents in fact wanted to interfere in the possession under the
garb of providing a passage to one of the owners of the land in the
neighbourhood. The property in dispute is not shamlat deh, as was sought to be
claimed by the respondents. He further submitted that the Gurudawara, which is
existing on the site in dispute, is a public place, where the residents of the area
come to make prayer and any disturbance in possession thereof will result in
hurting the feelings of the residents of the village.
After hearing learned counsel for the petitioners, I do not find any
merit in the submissions made. In fact, the learned lower appellate court has
considered the case set up by the petitioners in detail and on the basis thereof, it
C.R. No. 542 of 2009 [2]
was found that prima facie case was not made out by the petitioners. Rather, it
was a case where some portion of land forming part of khasra No. 114 and some
portion of land comprised in khasra No. 337 had been encroached upon by the
petitioners. As per jamabandi for the year 2003-04 on record, the petitioners have
been shown to be the owners in possession of the land comprised in khasra No.
437/339(0-2), 340(0-7) and 341(0-1), meaning thereby, it could not be proved on
record on the basis of any document that the petitioners had any right, title or
interest in any other land in their possession. The rest of the land, on which the
petitioners are claiming possession, was shown to be vacant portion in abadi deh
which was not owned by any person. It is further noticed that though the
petitioners were owners of land only to the extent of 10 Marlas of land forming
part of khasra No. 437/339, 340 and 341, situated on eastern side of khasra No.
114 across the old road comprised in khasra No. 337, they had not only encroached
upon eastern portion of khasra No. 114 across the old road comprised in khasra
No. 337 but also the land measuring 3 kanals 17 marlas comprised in khasra No.
337. Considering these facts, the learned court below came to a definite finding
that the petitioners having encroached on the land, which is not owned by them,
are not entitled to any interim injunction to retain the possession thereof and the
respondents would be at liberty to remove the unauthorised encroachment/
construction in due process of law. However, it was further left open therein that
in case the Gram Panchayat wanted to gift the encroached land to the petitioners, it
would be at liberty to do the same in accordance with law.
The aforesaid finding recorded by the learned court below while
reversing the interim order passed by the trial court in favour of the petitioners
cannot, as such, be faulted with for the reason that no document of title beyond 10
Marlas of land has been produced by the petitioners to show the ownership of the
land. Keeping the aforesaid facts in view, I do not find any reason to interfere with
the impugned order.
Accordingly, the revision petition is dismissed.
(Rajesh Bindal)
Judge
31.1.2009
mk