Civil Revision No.788 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.788 of 2011(O&M) Date of Decision: February 4, 2011 Sarita and another .....Petitioners v. Mukesh Kumar and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Alok Jain, Advocate for the petitioners. ..... RAM CHAND GUPTA, J.(Oral) 1. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 2.11.2010, passed by learned Additional District Judge, Rohtak, affirming order dated 19.10.2010, passed by learned Additional Civil Judge, Junior Division, Rohtak, granting ad interim injunction in favour of the respondent- plaintiffs. 2. I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned orders passed by both the courts below. 3. Brief facts relevant for the decision of present revision petition are that parties are closely related. They are real brothers and sons of Dalip Singh, who is still alive. Property in dispute is stated to be owned by grand father of the parties, namely, Richhpal, i.e, father of Dalip Singh, who has been recorded as owner of the said house in the municipal record. After his death, the property was inherited by his six heirs to the extent of 1/6th share each, namely, Smt.Chhanno Devi, widow; Smt.Gina Devi, Krishna Devi, daughters, Dalip Singh, father of present parties, Ramesh and Jai Parkash, sons and hence, even Smt.Chhanno Devi was having 1/6th share in the said property. After death of Richhpal, the present petitioner-defendants are claiming exclusive ownership of the entire house on the basis of alleged Will executed in their favour by Smt.Chhanno Devo. However, it has been Civil Revision No.788 of 2011(O&M) -2- rightly observed by both the Courts below that at this stage, when Smt.Channo Devi was having only 1/6th share in the property, she is having no right to execute the Will in favour of petitioners regarding the whole house. 4. Moreover, at this stage, only prima facie case, balance of convenience and the fact as to whether irreparable loss would be caused to the respondent-plaintiff, if ad interim injunction is not granted to them, is to be seen. 5. In order to show prima facie the possession of the portion of the house in dispute, respondent-plaintiffs have placed on record electricity bill, voter card and ration card showing their possession in the house in dispute. On the other hand, no document has been placed on record on behalf of the present petitioner-defendants showing their exclusive possession over the entire property. Moreover, both the parties have claimed possession through their father Dalip Singh, who is still alive and residing in the same house. 6. Learned Civil Judge, Junior Division, Rohtak, allowed application for ad interim injunction filed by respondent-plaintiffs by observing as under:- “ It is the case of the plaintiffs that they are in possession of some portion in the disputed premises. The ownership is not in dispute between the parties. The defendants have also admitted that the plaintiff No.1 is having the electricity connection in his name in the disputed premises. That apart, it is also admitted that the ration card and voter card of plaintiffs is also of the suit premises. The electricity bill, voter card and ration card has been placed on record by the plaintiffs. At this stage, the Court has not to go into the merits of the case and has to prima facie rely upon the material on record. That apart, the possession of the plaintiffs over the suit property is not specifically denied by the defendants. Rather, the defendants in the written statement and counter claim have asserted that the plaintiffs forcibly kept their household article after breaking the lock of the room on the first floor. The photographs are also placed on the record by both the parties to Civil Revision No.788 of 2011(O&M) -3- this effect. The law is explicit that though an injunction cannot be granted against a true owner but forcible possession is also not recognised in law. Meaning thereby that no person who is in possession even as a trespasser or an encroacher can be dispossessed except in due course of law. In Surta Ram and others v. Fakkar 2004(2) Civil Court Cases 85 (P&H), it was held by the Hon'ble Punjab and Haryana High Court that a person in long continuous possession can protect his possession by seeking injunction against any person other than the true owner, and even the true owner can get back possession only by resorting to due process of law. In Hukum Singh v. Tara Singh 1992 Civil Court Cases 771 (P&H), it was held that person in possession, in whatever capacity, cannot be dispossessed except in due course of law. In case law Isher Singh v. Badan Singh @ Battan Singh and others 1988(2) Recent Revenue Reports 262, the Hon'ble Punjab and Haryana High Court held that once possession is admitted, petitioner is entitled to injunction limited to the extent that he may not be dispossessed except without due course of law.” 7. In appeal learned Additional District Judge, Rohtak, dismissed the same by observing as under:- “ In the totality of the facts and circumstances, no interference is warranted in the findings so recorded by the learned Lower Court while allowing the stay application. Resultantly, the appeal is hereby dismissed. Before parting, it is pertinent to discuss here that both the plaintiffs and defendants have come up with the plea that their parents are residing in the house in question. Since, the plaintiffs have set up the plea that their father Dalip Singh is having 1/6th share in the house in question, by going with the said contention in view of this court Dalip Singh if he wishes may permit both the parties to the suit to reside in his share in the house in question.” 8. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Civil Revision No.788 of 2011(O&M) -4- both courts below in passing the impugned orders and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. 9. 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. 10. Hence, the present revision petition is hereby dismissed being devoid of any merit. 11. However, it is made clear that nothing observed herein shall be having any bearing on the decision of this case on merit by learned trial Court. 4.2.2011 (Ram Chand Gupta) meenu Judge