Civil Revision No.5436 of 2011 -1- IN THE HIGH Court OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5436 of 2011 Date of Decision: 6.9.2011 Smt.Krishna Devi .....Petitioner Versus Phool Singh and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Ravi Kant Sharma, Advocate for the petitioner. M ehinder S ingh S ullar , J .(Oral) Concisely, the facts, which need a necessary mention, for the limited purpose of deciding the core controversy, involved in the instant revision petition and emanating from the record, are that Phool Singh son of Chanchal Singh respondent No.1-plaintiff (for brevity “the plaintiff”) filed the suit seeking a decree for declaration to the effect that he is owner and in possession of the property in dispute, with a consequential relief of permanent injunction, restraining Smt.Krishna Devi wife of Nanha Ram petitioner-defendant No.5 and Subhash, Raj Pal and Sanjay proforma respondent Nos.2 to 4-defendant Nos.1 to 3 (for short “the defendants”) from interfering in his possession, alienating in any manner and from cutting and removing the trees, from the suit land. 2. The case set up by the plaintiff, in brief in so far as relevant, was that his father Chanchal Singh was the owner and in possession of the land in dispute. After his death, he (plaintiff) and his brother Gaje Singh inherited the suit land in equal shares in natural succession, being his (Chanchal Singh) legal heirs. He was stated to have given his share to the plaintiff for cultivation on batai as he was unable to cultivate the land. He has planted 500 trees of poplar and mangoes in the Civil Revision No.5436 of 2011 -2- land in dispute. The plaintiff claimed that on 25.11.2006 some body had murdered Gaje Singh and his wife Bhagirthi in village Kanalsi, Tehsil Jagadhri District Yamunanagar. As such, they died intestate, leaving behind the plaintiff, being their only legal heir. The mutation of inheritance of Gaje Singh was entered in favour of plaintiff. 3. According to the plaintiff that the defendants have formed the group to illegally grab the suit property, which necessitated him to file the suit for a decree of declaration and permanent injunction against defendant Nos.1 to 5. It was also claimed that the application under section 319 Cr.PC filed by the prosecution for summoning the plaintiff as an additional accused in the criminal case was also dismissed by the trial Court, by virtue of order dated 14.7.2007. 4. The case of the plaintiff further proceeds that Krishna Devi defendant No.5 filed another suit against him, on the basis of Will dated 20.8.2006 allegedly executed by Gaje Singh in her favour, in which, the application for stay was dismissed, by way of order dated 14.5.2007, but still, the defendants are bent upon to cut and remove the trees and to dispossess the plaintiff from the land in dispute. 5. Levelling a variety of allegations and narrating the sequence of events, in all, the plaintiff claimed that he is owner and in possession and the defendants have got no right, title or interest, but they illegally intend to dispossess him from the suit land. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of declaration/permanent injunction against the defendants, in the manner indicated hereinabove. He also filed the application for ad interim injunction under Order 39 Rules 1 and 2 read with Section 151 CPC on the same line of pleadings as contained in his plaint. 6. The petitioner-defendant No.5 contested the suit and filed the written statement and reply to the stay application, wherein it was admitted that Gaje Singh was the owner of the land in dispute to the extent of his half share, but the Civil Revision No.5436 of 2011 -3- plaintiff and Gaje Singh were claimed to have planted the trees in it. The plaintiff was stated to be debarred from inheriting the suit land from Gaje Singh under Section 25 of the Hindu Succession Act (hereinafter to be referred as “the Act”). It will not be out of place to mention here that the contesting defendant has stoutly denied all other allegations contained in the written statement and reply and prayed for dismissal of the suit and stay application. 7. The trial Court, after taking into consideration the entire material on record, allowed the stay application and restrained defendant No.5 from interfering in the possession of the plaintiff, alienating in any manner and from cutting & removing the trees from the land in dispute, by means of impugned order dated 24.4.2009 (Annexure P4). 8. Aggrieved by the decision of the trial Court, petitioner Krishna Devi (defendant No.5) filed the appeal, which was dismissed as well, by the Ist Appellate Court, by virtue of impugned order dated 23.8.2011 (Annexure P5). Still, she did not feel satisfied with the impugned orders of the Courts below and preferred the instant revision petition, invoking the provisions of Article 227 of the Constitution of India. 9. After hearing the learned counsel for the petitioner-defendant No.5, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the present revision petition in this context. 10. Ex facie, the argument of learned counsel that since the plaintiff has failed to prove his possession and also he is debarred from inheriting the property of his brother Gaje Singh under section 25 of the Act, so, the Courts below committed a legal mistake in allowing his application for stay, sans merit. 11. As is evident from the record that Chanchal Singh was the owner and in possession of the suit property. After his death, his two sons, namely, Phool Singh (plaintiff) and Gaje Singh inherited the property in dispute in equal shares in Civil Revision No.5436 of 2011 -4- natural succession and mutation in pursuance thereof was also sanctioned in their favour. The petitioner claimed that she is the adopted daughter of Gaje Singh. Her adoption was disputed by the plaintiff. It is not a matter of dispute that the petitioner-defendant No.5 filed the suit seeking a decree for injunction against the present plaintiff, being the adopted daughter of Gaje Singh and also set up a Will dated 20.8.2006, allegedly executed by Gaje Singh in her favour. The Will and adopted deed were not believed and her application under Order 39 Rules 1 and 2 CPC was dismissed by the trial Court. The application under Section 319 Cr.PC to summon the plaintiff as additional accused filed in a case of murder of Gaje Singh was dismissed as well on the ground that the mere fact that he happens to be a natural heir of Gaje Singh, is no ground to presume his complicity in the commission of offence. Therefore, it cannot possibly be saith that the plaintiff has murdered his brother Gaje Singh and he is debarred from inheriting his property. 12. As is clear, the trial Court has scanned the material on record in the right perspective and accepted the claim of the plaintiff, by way of impugned order (Annexure P4), which, in substance, is (paras 11 to 13) as under:- “11. I have very carefully considered the contentions put forth so vehemently by learned counsel for defendant no.5 but find myself unable to subscribe to his view point in as much as there is absolutely nothing on record to prove that defendant no.5 was adopted by Gaje Singh and Bhagirthi during her childhood. Defendant no.5 had also filed a civil suit titled as Krishna Devi versus Phool Singh wherein she claimed declaration regarding suit land and consequential relief of permanent injunction on the basis of she being the adopted daughter of Gaje Singh and Bhagirithi and a will dated 20.8.2006 executed by Gaje Singh in her favour. In said suit application for grant of ad interim injunction filed by defendant no.5 was dismissed by the court of Ms.Sonika Goel the then learned Civil Judge (Junior Division) Jagadhri vide order dated 14.5.2007, wherein it was observed in these circumstances it can not be prima facie said that will dated 20.8.2006 is genuine and she is adopted daughter of Gaje Singh. Thus, her contention that she is adopted daughter of Gaje Singh and Bhagirithi at this stage cannot be accepted. Civil Revision No.5436 of 2011 -5- 12. In respect of the second contention regarding applicability of section 25 to plaintiff Phool Singh, I am of the opinion that disqualification envisaged therein does not apply to plaintiff in as much as only a murderer is disqualified from inheriting the property of the person murdered and plaintiff Phool Singh has not been found to have played any role in the murder of Gaje Singh and Bhagirathi as observed in the detailed order dated 14.7.2007, passed by the court of Shri Darshan Singh learned Additional Sessions Judge, Yamuna Nagar in Sessions Case No.9 of 2007. By said order application under section 319 Cr.PC filed by prosecution for summoning of Phool Singh son of Chanchal Singh as an additional accused was dismissed observing mere this fact that Phool Singh happens to be natural heir of Gaje Singh being his brother is itself no ground to presume his complicity in the commission of the offence. In this view of the matter observations made by the Court of Shri Darshan Singh learned Additional Sessions Judge, Yamunanagar in judgment dated 28.4.2008 hereby son and grandson of plaintiff alongwith others were convicted and sentenced for committing murder of Gaje Singh and Bhagirithi as were pointed out by learned counsel for defendant No.5 during the course of arguments would be of no consequence, so far as entitlement of plaintiff Phool Singh to inherit the property of Gaje Singh and Bhagirithi consequent upon their death is concerned. 13. Since this stage, it has been found prima facie that plaintiff inherited the property left by Gaje Singh and Bhagirithi, therefore, he has to be taken to be in possession of the same regardless of the fact that there is nothing on the record that he had been in possession of the suit land even during life time of Gaje Singh and Bhagirithi as a tenant on payment of batai. Moreover, application for stay filed by defendant No.5 in a suit filed by her against plaintiff Phool Singh for restraining him from interfering in her possession over the suit land already stands dismissed. Thus, it is plaintiff who prima facie is in possession of the suit land and, therefore, is entitled to relief of ad interim injunction as prayed for.” 13. Not only that, the decision of the trial Court was upheld by the Ist Appellate Court, by means of impugned order (Annexure P5). The learned counsel for the petitioner-defendant No.5 did not point out any material, much less cogent, to contend as to how and in what manner, the impugned orders of the Courts below are illegal and would invite any interference in this relevant behalf. Civil Revision No.5436 of 2011 -6- 14. Meaning thereby, both the Courts below have recorded the cogent grounds in allowing the stay application filed by the plaintiff, through the medium of impugned orders (Annexures P4 and P5). Such impugned orders, containing valid reasons, cannot possibly be set aside, in exercise of limited revisional jurisdiction of this Court under Article 227 of the Constitution of India, unless and until, the same are perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner- defendant No.5, therefore, the impugned orders deserve to be and are hereby maintained in the obtaining circumstances of the case. 15. No other point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner. 16. In the light of the aforesaid reasons and without commenting further anything on merits, lest, it may prejudice the case of either side during the course of the trial, as there is no merit, therefore, the instant revision petition filed by the petitioner is hereby dismissed as such. 17. Needless to mention that nothing observed here-in-above would reflect in any manner on the merits of the case as the same has been so recorded for a limited purpose of deciding this revision petition. 6.9.2011 (MEHINDER SINGH SULLAR) AS JUDGE Whether to be referred to reporter?Yes/No