Civil Revision No. 4935 of 2009 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 4935 of 2009 Date of decision. 31.08.2009 Bijender Singh Dagar s/o Dharampal Singh Dagar, r/o Plot No. 9, Dabua Colony, Gajipur Road, Faridabad. ....... Petitioner Versus Ajay Kumar Dixit s/o Jai Kumar Dixit r/o H.No. 564, Dabua Colony, Janta Nursing Home Wali Gali, Faridabad. ...... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Jagdish Manchanda,Advocate for the petitioner. **** Sham Sunder, J. This revision-petition is directed against the order dated 11.08.2009, rendered by the Court of Additional District Judge, Faridabad, vide Civil Revision No. 4935 of 2009 --2-- which it accepted the appeal against the order dated 21.04.2007, rendered by the Court of Additional Civil Judge (Senior Division), Faridabad, and dismissed the application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, filed by the plaintiff. 2. The plaintiff claimed himself to be the owner in possession of house measuring 200 square yards, a part of khewat no.1 killa Nos.18 and 23 of village Gajipur, Tehsil and District Faridabad, which he had purchased, vide registered sale deed dated 13.07.2006. It was stated that the plaintiff had constructed two tin sheds and a khor, for teathering his cattle. He had also installed a water tank. It was further stated that the defendant, having no right, title or interest in the property, in dispute, threatened to interfere into the peaceful possession of the plaintiffs over the same. He also threatened to alienate the Civil Revision No. 4935 of 2009 --3-- same. Accordingly, the defendant was asked so many times, not to do so, but all in vain. Ultimately, a suit for declaration with consequential relief of permanent injunction was filed. 3. Alongwith the suit, an application, under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, for interim injunction was filed. 4. The defendant-respondent contested the suit as also the application by way of filing his written statement as also reply to the application, wherein, it was averred that Puran Lal, was the owner of the property, in dispute, after having purchased the same from Bhagwan Sharma, on 31.07.1990. It was further stated that prior to purchase of the same from Bhagwan Sharma, Ram Chander was the owner of the property, in dispute. It was further stated that the wife of the defendant, purchased the property, in Civil Revision No. 4935 of 2009 --4-- dispute, for a sum of Rs.10,000/-, vide sale deed dated 3.02.1992, with the boundaries as under:- East - Property of others West - Road 20 feet North - Plot No.8 South - Plot no.10 It was further stated that an amount of Rs.60,000/- was paid to the plaintiff by the defendant, under threat, for raising illegal construction, over the plot of his wife. It was further stated that despite receipt of the amount, the plaintiff started interfering into the peaceful possession of the defendant, and his wife , over the property, in dispute, and started raising demand of more money. It was further stated that when the defendant refused to pay more amount, the plaintiff threatened to kill him. A counter claim was also filed by the defendant. It was further stated that since the plaintiff was not in the possession of the property, Civil Revision No. 4935 of 2009 --5-- in dispute, he was not entitled to the injunction, prayed for. 5. After hearing the Counsel for the parties and, on going through the record, the trial Court, accepted the application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure and granted ad-interim injunction, in favour of the plaintiff. 6. Feeling aggrieved, an appeal was preferred by the appellant/defendant, which was accepted by the Appellate Court, vide its order dated 11.08.2009 and the application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, was dismissed. 7. Feeling dissatisfied, the instant revision-petition, has been filed by the plaintiff/revision-petitioner. 8. I have heard the Counsel for the revision-petitioner, and have gone through the documents, on record carefully. Civil Revision No. 4935 of 2009 --6-- 9. The Counsel for the revision- petitioner, submitted that the Appellate Court, was wrong, in coming to the conclusion, that the plaintiff (now revision-petitioner) was not in possession of the property, in dispute. He further submitted that the Appellate Court could only interfere into an order, passed on an application under Section 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure,in an appeal, if it came to the conclusion that the order was perverse, capricious or was passed without taking into consideration the relevant facts, and circumstances of the case. He further submitted that all the facts and circumstances of the case, were taken into consideration, by the trial Court, and thereafter, the order granting ad-interim injunction, was passed. He further submitted that the mere fact that the Appellate Court, could come to a different conclusion, on the basis of the same facts Civil Revision No. 4935 of 2009 --7-- and circumstances, did not mean that it could interfere into the order, passed by the Additional Civil Judge. He further submitted that the order, impugned, being illegal, was liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the revision- petitioner, in my considered opinion, the revision-petition, deserves to be dismissed, for the reasons to be recorded hereinafter. It is evident from the order, rendered by the Appellate Court that the boundaries mentioned, in the sale deed dated 13.07.2006, on the basis whereof, the plaintiff claimed ownership and possession, in respect of the property, in dispute, did not tally with the boundaries mentioned in the plaint. In the sale deed dated 13.07.2006, on the basis whereof, the plaintiff claimed him to be the owner in possession of property, in dispute, the boundaries were 20 feet Civil Revision No. 4935 of 2009 --8-- road on the northern and southern side, Amar Nath on the eastern side, the property of vendor on the western side, owners of the remaining land. However, the boundaries, which were described in the plaint on the eastern side, the house of others is shown, on the western side, 20 feet wide street has been shown on the northern side, the house of Bijender Singh is shown, and on the southern side, a vacant plot with boundary wall is shown. A perusal of the boundaries mentioned, in the sale deed of the plaintiff, and the one depicted in para no.3 of the plaint, it is clearly evident that the same are completely different, and did not tally with each other. In the plaint, the plot number was not mentioned. Even the boundaries given in the plaint, did not tally with the site plan. On the other hand, the sale deed dated 03.02.1992 produced by the defendant, showed that plot no.9, the property, in dispute, was Civil Revision No. 4935 of 2009 --9-- purchased by Smt. Nirmal, wife of the defendant, showing the boundaries towards eastern side other land, western side 20 feet rasta, northern side, plot no.8, and southern side, plot no.10. It is evident that the vendor of the defendant, Puran Lal had purchased this property, from Jai Bhagwan Sharma, with the same boundaries, vide sale deed dated 31.07.1990 and Jai Bhagwan had purchased the same from the previous owner i.e. Ram Chander with the same boundaries, vide sale deed dated 20.01.1992. It is further evident from the judgment of the Appellate Court that an illegal construction was raised by the plaintiff over the property, in dispute, and when an objection was raised by the defendant,he demanded a sum of Rs.60,000/- as cost of the illegal construction. Photocopy of the writing, dated 19.12.2006 duly signed by the plaintiff, and three others, was placed on record by the defendant, according to which, the Civil Revision No. 4935 of 2009 --10-- defendant paid a sum of Rs.60,000/-spent by the plaintiff, for raising illegal construction over the property, in dispute. This document, therefore, supported the claim of the defendant, that the plaintiff was neither the owner nor in possession of the property, in dispute. Not only this, even Smt. Nirmla, who according to the sale deed, in question, was prima-facie established to be the owner in possession of the property, in dispute, was not made a party. The Appellate Court was, thus, right, in holding that the plaintiff prima facie, failed to establish that he was in possession of the property, in dispute, as owner and, as such, no balance of convenience lay in his favour, nor irreparable loss was going to occasion to him, in case, the application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure was dismissed. The order, impugned, is neither illegal Civil Revision No. 4935 of 2009 --11-- nor suffers from any material irregularity nor perversity and, therefore, the same does not warrant any interference, of this Court, in its revisional jurisdiction under Article 227 of the Constitution of India. 11. For the reasons recorded above, the revision-petition, being devoid of merit, must fail, and the same is dismissed. 12. Any observation made in the order, shall not be taken, as an expression of mind,on merits of the case. ( Sham Sunder ) Judge August 31, 2009 dinesh