C. R. No. 3542 of 2008 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 3542 of 2008 (O&M)
Date of Decision : December 15, 2009
Suraj Parkash and another .... Petitioners
Vs.
Prem Kumar and another .... Respondents
CORAM : HON’BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Sanjeev Kumar Arora, Advocate
for the petitioners.
Mr. Sandeep Jasuja, Advocate
for the respondents.
* * *
L. N. MITTAL, J. (Oral) :
C. M. No. 10916-C-I of 2009 :
Application is allowed and Annexures P-3 to P-5 are taken on
record, subject to all just exceptions.
Main Case :
This is revision petition by plaintiffs assailing judgment dated
07.05.2008 (Annexure P-1) passed by learned Additional District Judge,
Ferozepur, whereby order dated 19.02.2007 (Annexure P-2) passed by
learned Civil Judge (Junior Division), Fazilka has been set aside.
The petitioners filed suit for permanent injunction alleging that
Daya Ram – grandfather of both the parties was in possession of 106 kanals
C. R. No. 3542 of 2008 (O&M) 2
4 marlas land including the suit land measuring 53 kanals 4 marlas. Daya
Ram had two sons namely Bihari Lal and Puran Ram. Petitioners are sons
of Bihari Lal, whereas respondents (defendants) are sons of Puran Ram.
Case of the petitioners is that after death of Daya Ram, Puran Ram father of
defendants and Bihari Lal father of plaintiffs were cultivating the entire land
in equal shares. However, Puran Ram was wrongly recorded to be in
possession of the entire land in the revenue record. Vide memorandum of
family settlement dated 28.12.2003 (Annexure P-3), it was admitted that
petitioners are in possession of half of the total land and respondents are in
possession of the remaining half. Respondents also affirmed affidavit
(Annexure P-4) dated 20.10.2004 to the same effect, which was also
reiterated in compromise (Annexure P-5) dated 20.11.2004. Accordingly,
the petitioners claimed to be in exclusive possession of the suit land
measuring 53 kanals 4 marlas, out of total land measuring 106 kanals 4
marlas.
The plaintiffs claimed temporary injunction seeking to restrain
the defendants from interfering in the possession of the plaintiffs over the
suit land till final decision of the suit. The defendants pleaded inter alia that
plaintiffs are not in possession of the suit land and defendants are in
possession of the entire land measuring 106 kanals 4 marlas. It was also
alleged that the plaintiffs got incorporated their names in khasra girdawari
by way of correction in connivance with revenue authorities, but in appeal,
the correction of khasra girdawari entries in favour of the plaintiffs was
set aside.
Learned trial court, vide order dated 19.02.2007 (Annexure
P-2), directed both the parties to maintain status quo regarding possession of
the suit land till final decision of the suit. However, in appeal preferred by
respondents herein, learned Lower Appellate Court, vide impugned
judgment dated 07.05.2008, set aside the order Annexure P-2 passed by the
trial court and dismissed the application for temporary injunction moved by
C. R. No. 3542 of 2008 (O&M) 3
the plaintiffs. Feeling aggrieved, the instant revision petition has been
preferred.
I have heard learned counsel for the parties and perused the
case file.
Although documents Annexures P-3 to P-5 have been denied
by the respondents, but prima facie these documents reveal that the
petitioners were admitted to be in exclusive possession of about 05 acres 02
kanals land comprised of Rectangle No. 77 Killa No. 18/2, 19, 20,
Rectangle No. 78 Killa No. 16, 17, 25/1 and 24/1. Learned counsel for the
petitioners is unable to refer to any material on record to substantiate the
claim of plaintiffs over 12 kanals remaining suit land comprised of
Rectangle No. 78 Killa No. 18 (8-0) and 23/1(4-0). Even the petitioners’
own documents reveal that their possession could be over 41 kanals 4
marlas land out of 53 kanals 4 marlas land claimed by them.
Defendants have not explained as to how they could come in
exclusive possession of the entire 106 kanals 4 marlas land, when
admittedly Daya Ram common ancestor of the parties was in possession of
the said entire land and Daya Ram had two sons namely Bihari Lal and
Puran Ram. The respondents being sons of Puran Ram prima facie could
not be in exclusive possession of entire land, which was under tenancy of
their grandfather Daya Ram. In this view of the matter, the claim of the
petitioners that they could be prima facie in possession of 41 kanals 4
marlas land, as per documents Annexures P-3 to P-5, cannot be thrown
away outrightly, merely on the basis of denial thereof by the respondents.
In view of the aforesaid, I am of the considered opinion that the
petitioners are entitled to restoration of trial court’s order of maintaining
status quo regarding possession of the suit land to the extent of 41 kanals 4
marlas land, out of the suit land and not regarding remaining 12 kanals land
mentioned herein above.
For the reasons recorded herein above, the instant revision
C. R. No. 3542 of 2008 (O&M) 4
petition is allowed partly. The impugned judgment dated 07.05.2008
(Annexure P-1) passed by learned Additional District Judge, Ferozepur is
set aside and order dated 19.02.2007 (Annexure P-2) passed by learned
Civil Judge (Junior Division), Fazilka is partly restored directing the parties
to maintain status quo regarding possession of 41 kanals 4 marlas land out
of the suit land as mentioned herein above, till final disposal of the suit,
whereas plaintiffs’ application for temporary injunction regarding remaining
12 kanals land in suit shall remain dismissed.
Nothing observed herein above shall be construed to be an
expression of opinion on the merits of the suit.
December 15, 2009 ( L. N. MITTAL ) monika JUDGE