Civil Revision No.1067 of 2009(O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Civil Revision No.1067 of 2009(O&M) Decided on : January 18, 2011 Nand Kishore and others ... Petitioners VERSUS Smt.Rambati and others ... Respondents CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Kunal Dawar, Advocate for the petitioners. Mr.Anand K. Bishnoi Advocate for the respondents. A.N.JINDAL, J.- This petition assails the order dated 9.1.2009 passed by Additional District Judge, Faridabad allowing the appeal against the order of injunction dated 30.5.2007 passed by the Civil Judge (Jr.Divn.), Palwal in favour of the plaintiffs – petitioners (herein referred as `the plaintiffs') restraining the respondents – defendants (herein referred as `the defendants') from interfering in the use of the passage during the pendency of the suit. The necessary facts, as essential for disposal of this petition, are that the plaintiffs had purchased a plot measuring 400 square yards depicted by letters `ABCD' from defendant Meer Singh vide registered sale deed Civil Revision No.1067 of 2009(O&M) [ 2 ] dated 4.1.1994. The said defendant had allowed the plaintiffs to use a 5 feet wide passage towards the southern side of the plot. Defendants No.2 and 3 had also purchased two pieces of land subsequently out of the remaining share of defendant No.1 and on the strength of the said sale-deeds, the defendants started interfering in the ingress and outgress of the plaintiffs over the said passage. As such, the plaintiffs had to file the present suit for injunction along with an application under Rule 39 Order 1 and 2 of the Code of Civil Procedure, 1908. The learned Trial Court issued an ad-interim injunction order while holding that the sale of the land was effected by defendant Meer Singh in favour of the plaintiffs by providing the 5 feet passage on the southern side of their plot. However, the Appellate Court vacated the injunction. Arguments heard. Record perused. There is no denying a fact that the plaintiffs are the purchasers of the plot measuring 400 square yards from Meer Singh through a registered sale-deed dated 29.12.1993. Similarly, Meer Singh had sold 450 square yards of land out of the same Khasra numbers to one Narbir Singh vide registered sale-deed dated 12.12.1995, while recording that the land sold has a passage for common use on the eastern and northern side. Narbir Singh further sold the said plot to Ami Chand – defendant through registered sale-deed dated 25.2.1997. This sale-deed also indicates that there is a passage on the northern side of the plot owned by him. The counsel for the plaintiffs has urged that since the year 1994, they have been using the said passage as left by Meer Singh, the original owner of the property. However, abruptly due to the greed, which prevailed upon the Civil Revision No.1067 of 2009(O&M) [ 3 ] defendants, they got transferred the said passage by forging sale-deed on 4.4.2006, purported to have been executed by Meer Singh in favour of Rambati. When once, Meer Singh being the original owner of the land comprised in Khewat Khatoni No.129/162 Khasra No.16/14/2/2 (0-18) 17/2 (1-3) and Khasra No.17/1/2 (0-2) total measuring 1 Kanal 13 Marlas i.e. 13/33 share had sold the same by carving the plot, while leaving the street in question between them and the same was continuously being used without intervention by the subsequent owners, then the subsequent sale by the original owner of the said street is certainly questionable and the fate of the said sale need not be commented upon, at this stage. However, it would be suffice to say that since the defendants had relinquished the said land as passage and had projected that it was a passage on the basis of which the plaintiffs had purchased the plots and had been using the said passage on account of which they had purchased the plots, therefore, they cannot be deprived of the use of the same during the pendency of the suit. There is another document i.e, an affidavit of Meer Singh dated 4.1.1994, which indicates that Meer Singh made a declaration that the 5½ feet wide passage left by him would belong to the purchasers and would be used by them as per their wishes. As such, the affidavit, though still to be proved on record, would prima facie be a proof of fact that the owner had left the passage for the use by the plaintiffs. The appellate Court appears to have passed the impugned order without touching the aforesaid aspects of the case and on mis-appreciation of the facts and the documents, brought on record. Resultantly, interference at my end has become inevitable. Taking stock of the aforesaid circumstances, it may further be Civil Revision No.1067 of 2009(O&M) [ 4 ] observed that if the plaintiffs are deprived of the use of the said 5½ feet wide passage during the pendency of the suit, then they would certainly suffer an irreparable loss as their ingress and outgress from the southern side of their house would be disturbed. The balance of convenience is also in their favour. Resultantly, the petition is accepted and the impugned order passed by the Appellate Court is set aside and that of the Trial Court granting injunction in favour of the plaintiffs is restored. January 18, 2011 ( A.N.JINDAL ) `gian' JUDGE