Civil Revision No.790 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.790 of 2009. Date of decision:- 25.02.2009. Jagdish ...Petitioner Versus Kharaiti Lal Due and another ...Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. Krishan Singh, Advocate for the petitioner. Mr. Jitender S. Chahal, Advocate for the respondents. JASWANT SINGH J. The plaintiff-petitioner Jagdish has filed the present petition under Article 227 of the Constitution of India for setting aside the impugned order dated 07.11.2008 (Annexure P-2) passed by learned Additional District Judge, Yamuna Nagar vide which the order dated 04.08.2006 (Annexure P-1) passed by learned Civil Judge (Junior Division) Jagadhari granting the interim injunction under Order 39 Rules 1 and 2 of CPC in favour of the plaintiff-petitioner has been set aside in appeal. The brief facts of the case are as under :- The plaintiff-petitioner filed a civil suit No.925 of 05.11.2005 for seeking permanent injunction restraining defendants-respondents from interfering in his peaceful possession illegally and forcibly from the house constructed in land measuring 1 Kanal 8 Marla described in head-note of the plaint. It is alleged by the plaintiff that there was no residential house of the predecessors of the defendants in Village Singhpura and in the year 1970 the plaintiff was engaged by them as agricultural labourer/helper and Civil Revision No.790 of 2009 -2- the disputed property was gifted to him orally and no writing was made. The plaintiff has further alleged that he constructed two rooms, chhan and varandah etc. thereupon and is residing there peacefully continuously as owner alongwith his family. It is further alleged that he is paying electricity bills regularly and he is having voter card and paying chulha tax. Now the defendants are threatening to dispossess him forcibly and illegally, hence, the suit was filed for permanent injunction. Alongwith the suit, an application was also filed under Order 39 Rules 1 and 2 of CPC seeking interim injunction during the pendency of the civil suit. The defendants have filed written statement to the main suit as well as injunction application and have, inter alia, raised the plea that plaintiff had moved an application before the Labour Officer alleging himself to be a labourer of the defendants at their factory on monthly salary of Rs.3000/- per month and he has not disclosed this fact and further alleged that predecessors of the defendants used to live in village Singhpura and the plaintiff was not engaged as labourer in the year 1977 and it is specifically submitted that no gift was ever made to the plaintiff regarding the property in dispute and he has not constructed any room or chhan etc. over the property in dispute. It is further pleaded that plaintiff might have been living in Village Singhpura in another plot. But just to grab the property of the defendants, he filed the present suit while producing ration card and voter card as not pertaining to the property in dispute. However, it is admitted that five years back the plaintiff contacted the defendants and requested to give him a job of agricultural helper and he was engaged as such and about one year back defendants asked the plaintiff to apply for electricity connection from the Electricity Department in the name of defendant No.2 and for that purpose the plaintiff got the signature of defendant No.2 on the relevant papers and he has misused these papers and got the electricity meter installed in his own name. It is Civil Revision No.790 of 2009 -3- specifically averred that he has not been in possession over the suit property. After hearing both the parties, learned Trial Court allowed the application under Order 39 Rules 1 and 2 of CPC and defendants were directed not to dispossess the plaintiff from the suit property except in due course of law till the final decision of the suit vide order dated 04.08.2006 (Annexure P-1) and an appeal against that order was filed before the learned District Judge, Yamuna Nagar at Jagadhri and the same was accepted by learned Additional District Judge by way of the impugned order dated 07.11.2008 (Annexure P-2) and the application under Order 39 Rules 1 and 2 CPC filed by the plaintiff-petitioner has been dismissed, hence, the present revision petition. A perusal of the order dated 04.08.2006 passed by learned Civil Judge (Junior Division) Jagadhri reveals that plaintiff has not placed on record any material, which could substantiate his status over the property in dispute as a donee and paras 8,9 and 10 thereof are reproduced hereasunder:- “ 8. After hearing the learned counsels for the parties and after having gone through the case file very carefully, this court is of the considered view that in the present case, the plaintiff has claimed that he is in possession over the suit property being donee. He is entitled to injunction restraining the defendants from dispossessing him forcibly. At this stage, there is no evidence on record which could show that the suit property has been gifted to the plaintiff by predecessors- in-interest of the defendants. There can be no gift of immovable property orally and every gift has to be inked. So far as the question of possession of the plaintiff over Civil Revision No.790 of 2009 -4- the suit property is concerned, the plaintiff has placed on record electricity receipt, chulha tax receipt, voter card receipt. However, these documents does not show that the plaintiff is in possession over the suit property but it shows that the plaintiff is resident of village Singhpura. There is no evidence on record which could show that the plaintiff has any other residence also in village Singhpura except the suit property. The defendants have also admitted that the plaintiff might have been residing in Village Singhpura somewhere else but he has not specifically denied the fact that the plaintiff is resident of Village Singhpura. 9. A perusal of para No.2 of the written statement reveals that the defendants asked the plaintiff to get a electricity connection in the name of defendant No.2 for which the defendant No.2 signed some documents but the plaintiff has got installed the meter in his name. This fact shows that an electric meter in the name of the plaintiff is installed in the suit property. No doubt, ration card, identity card are unilateral documents but in the present case, defendants have admitted that the defendant No.2 had appended his signatures on the application for installation of the electric meter, so, it cannot be said that this is unilateral documents. So, prima facie it is clear that the plaintiff is in possession over the suit property. 10. Now the question arises, what is the status of the plaintiff over the suit property? In the present case, the plaintiff has not placed on record any document which Civil Revision No.790 of 2009 -5- could show his status over the suit property as donee. However, he has claimed himself to be in possession since 1977. On the other hand, the defendants have also admitted the possession of the plaintiff over the suit property by giving averments that the plaintiff has got a electric meter installed in the name of defendant No.2 fradulently. No doubt, no injunction can eb granted in favour of a trespasser against a lawful owner but a person who is in settled possession over the suit property cannot be thrown out of the property forcibly without taking re-course of the law. “ A perusal of the paragraphs reproduced above reveals that it is not well proved that plaintiff has become the owner of the property in dispute as a donee. However, learned Trial Court has observed that prima facie it is clear that the plaintiff is in possession over the suit property and therefore his possession was protected during the pendency of the civil suit. A perusal of the impugned order dated 07.11.2008 reveals that while before the Payment of Wages Authority, the plaintiff has claimed that he is in possession of the property in dispute as a worker for the last 35 years and in the application he has claimed to have been engaged by the defendants as a labourer at a salary of Rs.3000/- per month and in another application, filed before the Labour-cum-Conciliation Officer he has claimed to have been engaged by the defendants in their factory on monthly salary of Rs.3000/- per month w.e.f. 05.10.2000. Yet in another application under the Payment of Wages Act, filed on 24.02.2006 he did not plead his ownership over the suit land on the basis of oral gift deed. Rather he claimed himself as labourer on the land in dispute. The plaintiff has placed on record jamabandi for the year 2002-03 relating to the land in Civil Revision No.790 of 2009 -6- dispute but the same does not describe the possession as owner of the plaintiff nor there is any house shown in the jamabandi. Rather the entries in the jamabandi show that defendants are in cultivating possession as owners and the learned Additional District Judge has rightly observed that presumption of truth is attached with the revenue record until and unless it is proved otherwise and the plaintiff has not led any evidence to rebut the same. Merely that an electric connection is installed in the name of the plaintiff does not mean that the plaintiff has become the owner of the property in dispute and he is in possession over the suit land as an owner by way of gift deed. The electric bills relate to the year 1992 and 2005 and do not support the claim of the petitioner that he is in possession over the property in dispute for the last 35 years. The other documents like chulha tax, voter card and ration card are unilateral documents and not helpful to prove the possession of the plaintiff over the property in dispute. The plaintiff has not disclosed the factum of filing of the application before the Payment of Wages Authority as well as before the Labour and Conciliation Officer in which he has alleged that the services have been terminated by the defendants and in support, the version of the defendants is that they ousted the plaintiff from the suit land when they came to know about the fradulent action of the plaintiff in getting the electricity connection in his name. Keeping in view the facts and circumstances discussed hereinabove, there is no prima facie case made out in favour of the plaintiff to prove that he is in possession over the suit property. Rather, it is a case where the plaintiff is trying to take undue advantage of his own fradulent action of breach of trust and faith as a worker. There is no balance of convenience, which lies in favour of plaintiff and he will not suffer irreperable loss which will not be compensated in any way. The law is well settled for grant of temporary injunction that this is a relief of discretion and Civil Revision No.790 of 2009 -7- discretion should be exercised by the Court in favour of a litigant, who comes to the Court with clean hands. If there is a concealment of facts by the party then he is not entitled for discretionary relief of injunction and in the present case, the petitioner has not disclosed the fact of filing of the application before the Laboiur Officer as well as before the Payment of Wages Authority and the plaintiff has not come to the Court with clean hands and even on that ground also he is not entitled to seek the discretionary relief of injunction. However, it is necessary to mention here that the observation made by this Court as well as both the Courts below will not construe anything on merit while deciding the main suit of the plaintiff by the learned Trial Court. Consequently, this petition is dismissed as there is no ground to interfere in the impugned order dated 07.11.2008 (Annexure P-2) passed by learned Additional District Judge, Yamuna Nagar while exercising powers under Article 227 of the Constitution of India. February 25, 2009 (JASWANT SINGH) vj JUDGE