Civil Revision No.880 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.880 of 2011(O&M) Date of Decision: February 7, 2011 Santokh Singh .....Petitioner v. Daljit Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.K.S.Dhillon, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.3680-CII of 2011 1. Application is allowed subject to all just exceptions. Civil Revision No.880 of 2011 2. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 14.6.2008, Annexure P1, passed by learned Civil Judge, Junior Division, Jalandhar, and order dated 16.2.2010, Annexure P2, passed by learned Additional District Judge, Jalandhar. 3. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned orders passed by learned Courts below. 4. Facts relevant for the decision of present revision petition are that respondent nos.1 and 2- plaintiffs filed suit for declaration to the effect that they are owners in possession of the land in dispute fully described in the heading of the plaint, on the basis of family settlement dated 17.5.2001 and as per jamabandi for the year 2004-05 of Village Udhopur, Tehsil and District Jalandhar and that the alleged sale-deed no.5922 dated 14.10.2004, executed by defendant nos.1 and 2 in favour of present petitioner-defendant no.3 regarding 2/15th share out of total khata as well as the mutation sanctioned in favour of defendant no.3 on the basis of the said sale-deed, are Civil Revision No.880 of 2011(O&M) -2- illegal, void, and not binding on the rights of the respondent-plaintiffs with consequential relief of permanent injunction restraining the defendants including the present petitioner-defendant no.3 from interfering in peaceful possession of respondent-plaintiffs over the land in dispute as well as from further alienating, mortgaging or creating any other charge on the said property in any manner, whatsoever and in the alternative, suit for joint possession of the suit land as owner was sought. 5. Alongwith the suit, an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereinafter to be referred as the `Code') for ad interim injunction order was also filed by the respondent-plaintiffs. 6. Learned trial Court vide impugned order allowed the application filed by respondent-plaintiffs and present petitioner-defendant no.3 was restrained from interfering in peaceful possession of the respondent-plaintiffs over the suit property, illegally, forcefully except in due course of law and he was further restrained from alienating the suit property just to prevent the multiplicity of the litigation, as specific stand was taken by respondent-plaintiffs that the suit property fell in their share by virtue of family settlement which had taken place initially in the year 1986. 7. Appeal filed by present petitioner-defendant no.3 against the said order was dismissed by learned appellate Court, i.e., learned Additional District Judge, Jalandhar. 8. It has been contended by learned counsel for petitioner- defendant no.3 that he is a bona fide purchaser for consideration and that possession was also delivered to him by the vendors at the time of execution of sale-deed and however, later on, he was illegally dispossessed by respondent-plaintiffs. Hence, it is contended that respondent-plaintiffs are having no right to seek injunction against the present petitioner, who had become owner of the land in dispute, by virtue of sale in his favour by respondent nos.3 and 4 -defendant nos.1 and 2. 9. Law is well settled that at this stage, learned trial Court was to see prima facie case, balance of convenience, and the fact as to whether an irreparable loss would be caused to respondent-plaintiffs, if ad interim injunction order is not granted in their favour. 10. Both the Courts below from perusal of the various documents Civil Revision No.880 of 2011(O&M) -3- placed on record by both the parties, including jamabandi and khasra girdawari produced on record by the respondent-plaintiffs, have come to the conclusion that prima facie, respondent-plaintiffs are shown to be in possession of the property in dispute, which came to their share by virtue of family settlement and that respondent-defendants had failed to show that they ever remained in possession of the same and that they were illegally dispossessed by respondent-plaintiffs. The relevant paragraph on the basis of which relief of ad interim injunction was granted by learned trial Court reads as under:- “ Now it is to be seen whether defendants no.1 and 2 were in possession portion allegedly purchased by defendant no.3. Plaintiffs have brought on record jamabandi for the year 1999 which depict exclusive possession of Daljit Singh, present plaintiff over property comprised in khasra no.12/21 min south (2-0), 22 min South (2-0), 23 min West/ South (0-15), 21//1/1 (3-16), 2/2 (7-17), 9/1 (0-10), 3 min West (3-0), 8/3 min West (0-10), the property allegedly purchased by defendant no.3 from defendant nos.1 and 2. So when defendant nos.1 and 2 were never in exclusive possession of the said property, they could not have delivered its possession to defendant no.3. Defendant no.3 had sought to rely upon one agreement dated 17.5.01, produced by plaintiffs, by virtue of which possession of said property was to be delivered by plaintiffs to defendants no.1 and 2. Even assuming that there was any such agreement executed on 17.5.01 between plaintiffs and defendant no.1 and 2, but it is to be seen whether the same was acted upon and as per the said agreement the sum of Rs.22,00,000/- was to be paid by defendants no.1 and 2 to present plaintiffs. The jamabandi for the year 1999 and the subsequent jamabandi does not depict that this compromise was ever acted upon. The latest jamabandi for the year 2004 produced by plaintiffs alongwith Khasra girdawari for sauni 2007, and Harri 2008, prima facie show exclusive possession of plaitniff Daljit Singh over the suit property. Plaintiff has also brough on record order dated 15.10.07 passed by Shri Bhupinder Singh, PCS, SDJM Civil Revision No.880 of 2011(O&M) -4- cum Collector Jalandhar vide which the appeal of the present defendant nos.1 and 2 against the order of AC I Jalandhar dated 31.1.07 passed by Sh.Kamaljit Singh Randhawa was allowed with a direction to make inquiry of the fact of private partition and to affirm it by resorting to Section 123 of the Punjab Land Revenue Act. So whether the family partition had already taken place between the parties by virtue of which suit property fell to the share of plaintiff, or whether no such partition had taken place it is all a matter of evidence to be decided after the appreciation of evidence but prima facie on record from the jamabandi as well as khasra girdawari produced on record by the present plaintiff. It is made out that plaintiff no.1 is in exclusive possession of the suit property though he is depicted to be as one of the co-owner in the column of ownership. Mere filing of any criminal case against present plaintiff by defendant no.3 cannot be constructed to prima facie hold that plaintiffs are not in possession of the suit property or that defendant no.3 was allegedly dispossessed in May 2008 as alleged by him. So plaintiff no.1 being in exclusive possession of the suit property is duly entitled to protect the same from illegal dispossession being a co-owner of the suit property and not a stranger. The remedy available with defendant no.3 is to seek partition. It is worth mentioning that defendant no.3 has also admitted the possession of plaintiffs over the suit property though he alleges that he was dispossessed in May 2008 from the portion which was purchased by him from defendants no.1 and 2. But as already discussed above, when defendant nos.1 and 2 were never in possession of the said portion, they could not have delivered the same to plaintiff.” 11. Learned appellate Court while dismissing the appeal filed by respondent-plaintiffs observed as under:- “ The case of the defendant/respondent no.3 is that he has purchased the share of Sukhdev Kaur and Jaswinder Singh, who are respondent nos.3 and 4 and has also taken the plea that when he was in foreign country, plaintiff/respondent no.1 has Civil Revision No.880 of 2011(O&M) -5- taken forcible possession in May 2008 regarding which an FIR was also lodged against him. Whereas the plaintiff/respondent no.1 has placed reliance on the family settlement between all the co-owners and also referred to the order passed by Asstt. Collector Ist Grade, Jalandhar, dated 20.3.96, vide which it has been held that the family partition has already taken place between the co-owners on the basis of the family settlement on 8.11.86 and on the basis of that family settlement, plaintiff/respondent No.1 had mortgaged the land measuring 91 kanal 2 marla. Further document has been placed on record that another partition application was filed, which was also dismissed vide order dated 4.9.2000 by Asstt. Collector Ist Grade, Jalandhar by upholding family partition dated 8.11.86 and the appeal was dismissed as withdrawn on 21.3.2001. As per agreement to hand over possession of the suit property to defendants no.1 and 2/respondents no.3 and 4 in case they pays the amount of Rs.22 lacs within 6-1/2 years by way of installments, but there is nothing on the record that they have paid the said amount to plaintiff/respondent no.1 and the defendant no.3/appellant is claiming his ownership over the suit property on the basis of the sale deed dated 14.10.2004 alleged to be executed by respondents no.3 and 4. To prove possession over the property in suit, plaintiff/respondents no.1 and 2 have placed on record copy of the jamabandi, which shows that plaintiff/respondent no.1 is in exclusive possession of the property in suit and there is nothing on the record that defendant no.3/appellant ever came in possession of the suit property or the defendants no.1 and 2/respondents no.3 and 4 were in exclusive possession of these khasra number prior to the execution of the sale deed. There is nothing on the record that agreement executed between plaintiff/respondent nos.1 and 2 and respondents no.3 and 4 dated 17.5.2001 was ever acted upon between them. There is also nothing on the record that the said compromise Civil Revision No.880 of 2011(O&M) -6- was acted upon in the revenue record and as per copy of the khasra girdawari placed on the file from Sauni 2007 to Harri 2008, plaintiff/respondent no.1 Daljit Singh has been shown to be in exclusive possession of the property in suit. 12. Orders passed by both the Courts below are reasoned one and based on evidence and hence, there is nothing as to why this Court should interfere in the impugned orders passed by both the Courts below. 13. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. 14. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Courts below in passing the impugned orders and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. 15. The present revision petition is hereby dismissed being devoid of any merit. 7.2.2011 (Ram Chand Gupta) meenu Judge