ESA No.379 of 1992 1 In the Punjab and Haryana High Court,at Chandigarh. Decided on May 28,2009 Mohan Singh -- Appellant vs Sucha Singh (deceased) through Gurbaksh Singh and others -- Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr. Hemant Sarin,Advocate, for the appellant Mr.Amit Jhanji ,Advocate,for the respondents Rakesh Kumar, Jain, J: This appeal is directed against the order dated 24.8.1991, passed by Sub Judge Ist Class, Jalandhar, whereby an application filed by respondent Nos. 2 to 4, namely Biru, Lakhwinder Singh and Dev Singh, sons of Naranjan Singh under Section 144 of Code of Civil Procedure,1908 (for short CPC) has been allowed and the appeal filed by the appellant against the aforesaid order has been dismissed by learned Addl.District Judge,Jalandhar, vide his impugned order dated 5.2.1992. Briefly stated the facts of the case are that land measuring ESA No.379 of 1992 2 2 kanals 5 marlas situated in village Laroi, Tehsil and District,Jalandhar, was jointly owned in equal shares by two brothers,namely Gurbaksh Singh and Sucha Singh. Gurbaksh Singh sold the entire land to respondent Nos. 2 to 4 on 19.12.1973 who got possession of the said land from Gurbaksh Singh co-sharer of Sucha Singh. Later on, Sucha Singh sold his half share in the said land to the appellant on 7.1.1974. The appellant filed a suit for possession of the said ½ share of Sucha Singh which was decreed by the trial court on 22.5.1975 wherein it was held that the appellant shall be entitled to ½ share i.e. 1 kanal 3 marla out of total 2 kanals 5 marlas. The judgment and decree of the trial court was upheld by the first Appellate Court. Respondent Nos. 2 to 4 filed Regular Second Appeal No. 1436 of 1977 in this Court, which was disposed of on 27.5. 1986 with the following order:- “That the appeal be partially allowed and the decree of the Senior Sub Judge, with enhanced appellate powers dated 20.7.1977, modifying that of the Sub Judge 2nd Class, Jalandhar dated 22.5.1975 be and the same is hereby modified to the extent that the plaintiff /respondent No.1 shall only be entitled to obtain possession of the decreed land by means of partition and not otherwise”. Admittedly, when the order dated 27.5.1986 was passed by this Court in RSA No. 1436 of 1977, this fact was concealed by respondent Nos. 2 to 4 from the Court that the appellant had already ESA No.379 of 1992 3 taken possession of ½ share of land out of 2 kanals 5 marlas vide Rapat Roznamcha dated 26.7.1978. However, respondent Nos. 2 to 4 filed an application under Section 144 of C.P.C. for restoration of possession in accordance with the order dated 27.5.1986. The appellant had taken a stand before the Court below that the possession of the land in question was taken by him to the extent of his share vide Rapat Roznamcha dated 26.7.1978 much prior to the order of this Court dated 27.5.1986 and the factum of possession having been taken by the appellant was not brought to the notice of this Court by respondent Nos. 2 to 4. Therefore, the application filed under Section 144 of C.P.C.was challenged. Both the Courts below allowed the application filed by respondent Nos. 2 to 4 and warrants were ordered to be issued for restoring the possession which was delivered to the appellant vide Rapat Roznamcha dated 26.7.1978. In the present appeal, at the time of admission, stay was granted. As such, both the parties are in their respective possession since 1978. Mr.Hemant Sarin, learned counsel for the appellant besides arguing on merits has submitted that both the parties are in possession of their land in equal share from the last 30 years i.e. since 1978. He also submitted that it would not be in the interest of justice to disturb their settled possession after 30 years as both the parties are using the land in their possession for agricultural ESA No.379 of 1992 4 purposes. Learned counsel for the appellant has relied upon a decision of the Supreme Court in the case of Kerala State Electricity Board through its Special Officer (Revenue) and another Versus M.R.F.Limited (1996) 1 Supreme Court Cases 597 to contend that in the matter of restitution, the Court should take a pragmatic view and frame relief which is reasonable, fair and practicable and does not bring about unmerited hardship to either party. On the contrary, Mr.Amit Jhanji, learned counsel appearing on behalf of respondent Nos. 2 to 4 has admitted that the possession of the land in question is with the appellant to the extent of his share since 1978 and the land is being used for agricultural purposes by both the parties. It is not disputed that both the parties are in possession of their respective share. Therefore, there is no dispute with regard to the shares of the parties. However, it is submitted that since this Court had ordered that the appellant shall be entitled to obtain possession of the land in question by means of partition, therefore, the land in dispute which is in possession of the appellant since 1978 be again restored under the provisions of Section 144 of C.P.C and then it should be partitioned. I have given my thoughtful consideration to the arguments raised by both the learned counsel for the parties and have perused the record with their assistance. ESA No.379 of 1992 5 Admittedly, the appellant and respondent Nos.2 to 4 are entitled to ½ share of the land in question measuring 2 kanals 5 marlas. Both the parties are in possession of their respective shares since 1978. The value of the entire land is the same and it is being used for agricultural purposes. Now the question is whether after 30 years, the land should be restored for the purpose of re-partition as ordered on 27.5.1986 or relief can be moulded keeping in view the facts and circumstances of this case as the parties are in long settled possession from the last 30 years and the fact of the appellant being in possession since 1978 was not brought to the notice of this Court when the order dated 27.5.1986 was passed. In Kerala State Electricity Board (Supra), the Supreme Court has observed as under:- “ There is no manner of doubt it is an imperative duty of the Court to ensure that the party to the lis does not suffer any unmerited hardship on account of an order passed by the Court. The principle of restitution as enunciated by the Privy Council in Rodger case has been followed by the Privy Council in later decisions and such principle being in conformity to justice and fair play be followed. It, should,however, be noted that in an action by way of restitution, no inflexible rule can be laid down. It will be endeavour of the Court to ensure ESA No.379 of 1992 6 that a party who had suffered on account of decision of the Court, since finally reversed, should be put back to the position, as far as practicable, in which he would have been if the decision of the Court adversely affecting him had not been passed. In giving full and complete relief in an action for restitution, the court has not only power but also a duty to order for mesne profits,damages, costs, interest etc. as may deem expedient and fair conforming to justice to be done in the facts of the case. But in giving such relief, the Court should not be oblivious of any unmerited hardship to be suffered by the party against whom action by way of restitution is taken. In deciding appropriate action by way of restitution, the Court should take a pragmatic view and frame relief in such a manner as may be reasonable, fair and practicable and does not bring about unmerited hardship to either of the parties” In view of the aforesaid decision wherein the Supreme Court has held that the Court should take a pragmatic view and frame relief in such a manner as may be reasonable, fair and practicable and does not bring about unmerited hardship to either of the parties, I am of the view that restoration of possession at this stage after upsetting the settled possession of 30 years for the sake ESA No.379 of 1992 7 of repartition of land in which there is no dispute with regard to shares, no prejudice is shown to have been caused to respondent Nos 2 to 4, it would be just and expedient to maintain possession of the parties in respect of the property as it is. Thus, after taking into consideration totality of circumstances, I find merit in this appeal and the same is hereby allowed and the orders of both the Courts below are set aside,however, without any order as to costs. May 28,2009 (Rakesh Kumar Jain) RR Judge Refer to Reporter-- Yes