Civil Revision No. 2343 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2343 of 2010 (O&M) Date of decision: 5.5.2010 Sucha Singh and others .. Petitioners v. Jaswant Singh .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Arun Jain, Senior Advocate with Mr. B. S. Mittal, Advocate for the petitioners. Mr. P. S. Jammu, Advocate for the respondent. .. Rajesh Bindal J. The plaintiffs are before this court challenging the order dated 31.3.2010 passed by the learned Lower Appellate Court in an appeal filed by the respondent-defendant against the interim stay granted by the learned trial court in a suit filed by the petitioners for declaration and injunction claiming right on the property left by their mother. The trial court had granted injunction in favour of the petitioners restraining the respondent-defendant from interfering into the possession of the petitioners-plaintiffs over 201 kanals 3 marlas land and one residential house in Village Kariwali as detailed in the plaint. However, the learned Lower Appellate Court while reversing the order passed by the learned trial court directed Tehsildar, Rania to take possession of the property in dispute, harvest the crop and lease out the same by way of open auction and deposit the money so received in the court. It is this order which is impugned in the present petition. Learned counsel for the petitioners submitted that the mother of the petitioners, namely Kartar Kaur, expired on 26.8.2008. The property was inherited by her from her ancestors. The petitioners were in possession of the property before the death of her mother and even after the death and in the residential house two of the petitioners, i.e., sons of deceased Kartar Kaur, were stated to be living. Inspite of the fact that sufficient material was produced on record by the petitioners and they were found to be in actual physical possession and findings to this effect have also been recorded by the learned trial court but the learned Lower Civil Revision No. 2343 of 2010 [2] Appellate Court without reversing the findings regarding the possession of the property, directed Tehsildar, Rania, to take immediate possession of the property in question, while observing that the property in dispute is more than 25 acres and is worth Rs. 5 crores and there is likelihood of fatal-fued between the parties which may claim lives of the parties. Tehsildar, Rania, who was appointed as Receiver, was directed to take possession of the property immediately, harvest the crop and deposit the sale proceeds in the trial court as early as possible and thereafter give the suit land on lease on year to year basis, in open auction and deposit the lease money with the trial court. It was further directed that a copy of the order be sent to the Tehsildar, Rania, through special messenger for strict compliance. Referring the aforesaid observations, it was submitted that there was no reason before the court to have directed the appointment of a receiver to take possession of the property from the persons who were in established possession thereof since long. Further the observation of the court regarding sending the copy of the order by way of special messenger and harvesting the crop immediately was with a view to frustrate the rights of the petitioners to challenge the order further before this court. The respondent-defendant in the present case is claiming himself to be the nephew of deceased Kartar Kaur. It was further pointed out by the learned counsel for the petitioners the speed at which the entire proceedings have taken place and that too after passing of the interim order by this court on 7.4.2010 granting status quo regarding possession of the property clearly shows that there is much more than what is evident to the naked eyes. The statement of learned counsel for the petitioners is that possession of the property was, in fact, not taken from them before the order was passed by this court. He merely got the order of the District Judge noted down from the petitioners and thereafter entire proceedings were recorded at their back. It was merely paper transaction. In fact, the crop was also harvested on 15.4.2010 as is recorded in the Rapat Roznamcha. The factum of harvesting of crop on 15.4.2010 is also evident from form `J' that it was sold through a katcha artia at Rania which happened on 15.4.2010. In fact the residual after harvesting the crop was sold by way of a public auction on 15.4.2010. All this is recorded in Rapat Roznamcha which clearly establishes the fact that after the passing of the interim order by this court, the Tehsilar had taken the proceedings clearly in defiance to the status quo order. He further submitted that if the crop had been harvested before the passing of the interim order on 7.4.2010, there was no reason to keep the same with the Tehsildar for seven days. As regards the claim set up by the respondent, it Civil Revision No. 2343 of 2010 [3] was submitted that he is claiming ownership on the basis of a will allegedly executed by deceased Kartar Kaur on 16.4.2008 in his favour before her death on 26.8.2008. It was registered on 16.1.2009 after the death of deceased Kartar Kaur. The respondent had not been able to produce on record any document showing that he had ever taken the possession of the property. In fact, he had filed an application before the Assistant Collector for transfer of the property in his name on the basis of will on 17.2.2009, which was rejected on 10.4.2009. The order was upheld in appeal by the Collector and the revision against the order filed before the Commissioner, Hisar, was also dismissed on 23.3.2010. On the other hand, learned counsel for the respondent submitted that the respondent is directly related with Kartar Kaur. He is grandson of Pyara Singh who was grandson of Jagat Singh. Jagat Singh had two sons, namely, Nihal Singh and Gurmukh Singh. Pyara Singh is the son of Nihal Singh whereas Anokh Singh husband of Aas Kaur was son of Gurmukh Singh. Kartar Kaur was born out of the wedlock of Aas Kaur and Anokh Singh. After the death of Anokh Singh, Aas Kaur contracted marriage with Pyara Singh. It is on this count that the respondent who is grandson of Pyara Singh is related with Kartar Kaur. He further submitted that the petitioners were not residing where the property in dispute is situated. They were residing in Village Dhippanwali, Tehsil Fazlika, District Ferozepur (Punjab). The property is situated in Village Kariwala, Tehsil Rania, District Sirsa (Haryana). He further submitted that prior to her death, Kartar Kaur had leased out the property in dispute from May 2007 to April 2009 to Janta Singh and Karam Singh. Thereafter, from May 2009 to April, 2010, the property in question was leased out by the respondent to Kashmir Singh and Mohan Masih. He further submitted that after the expiry of lease of the land as was given by Kartar Kaur, in April 2009, the lessee had handed over the possession of the property to the respondent and thereafter the same has been leased out to other persons by him. It is the petitioners who had filed the civil suit seeking inter-alia declaration to the effect that the will propounded by the respondent is forged and fabricated document. Unless that declaration is granted, the will is to be treated as valid. However, he did not dispute the fact that his application filed before the revenue authorities for sanction of mutation on the basis of Will propounded by him, was not accepted. Further, he was not able to refer to any material on record to show that the respondent was ever put in possession of the property by any of the persons, namely, the first lessees to whom the land was given on lease by Kartar Kaur and further as to how inspite of rejection of sanction of mutation on 10.4.2009, he had come in possession of the property. He, however, submitted that after the passing of the Civil Revision No. 2343 of 2010 [4] impugned order, the Tehsildar had taken the possession on 5.4.2010 and the crop was harvested on 6.4.2010. Heard learned counsel for the parties and perused the paper book. What is not disputed in the present case is that the petitioners are real sons of deceased-Kartar Kaur, whose property is in dispute, whereas the respondent is claiming himself to be her nephew, i.e., Kartar Kaur was born out of the wedlock of Anoop Singh, grand son of Jagat Singh with Aas Kaur. After the death of Anoop Singh, Aas Kaur contracted second marriage with Pyara Singh, who was also grand son of Jagat Singh, but not real brother of Anoop Singh. Jaswant Singh-respondent is grand son of Pyara Singh from his marriage with Aas Kaur. Kartar Kaur died on 26.8.2008. The Will sought to be projected by the respondent is dated 16.4.2008. It was registered on 16.1.2009 after the death of Kartar Kaur. Further, it is not in dispute that the application filed by the respondent for sanction of mutation on the basis of the Will, the Assistant Collector dismissed the same on 10.4.2009 by opining that the Will has been created under suspicious circumstances which is doubtful and unbelieveable. It is further not in dispute that in the entire revenue record, produced on record by the parties, it is either the petitioners-plaintiffs or their mother- Kartar Kaur, who have been shown to be in possession of the property. There is nothing on record to prove the fact, as alleged by the respondent-defendant, that the property was ever leased out by deceased- Kartar Kaur to Janta Singh and Karam Singh before her death. Further, no material has been referred to by learned counsel for the respondent to show as to how he came in possession of the property after the death of Kartar Kaur and after the expiry of the period of lease and also as to how he had leased out the property to Kashmir Singh and Mohan Masih from May, 2009 to April, 2010, except a self- serving affidavit filed by Kashmir Singh. Still further, it is the admitted position that the order passed by the Assistant Collector Ist Grade rejecting the application filed by the respondent for sanction of mutation on the basis of the alleged Will was further upheld upto the Commissioner. To establish the prima facie case, the petitioners produced on record copy of the ration card and voters list to show that deceased-Kartar Kaur used to live with her real son Harmeet Singh-petitioner. The revenue record produced by them on record shows that they were in possession of the property along with Kartar Kaur. The respondent is claiming his title on the property on the basis of alleged Will projected by him, the genuineness of which is yet to be established. He never claimed his possession on the property in dispute, as his stand was that even prior to the death of Kartar Kaur, the property was on lease and even after her Civil Revision No. 2343 of 2010 [5] death, the same is on lease with a different person, but no document in support of the stand was produced. The learned trial court had granted injunction in favour of the petitioner finding prima facie that from the documentary evidence produced on record, it was established that the petitioners were in possession of the property. However, the learned lower appellate court without setting aside those findings and rather strangely observing that the question of prima facie case; balance of convenience and irreparable loss cannot be answered at this stage, reversed the order of interim injunction. The observations of the learned court below are totally contrary to the settled position of law. For the purpose of grant of interim injunction, prima facie case; balance of convenience and irreparable loss are the factors to be considered. It was wrongly observed by the learned court below that both the parties are claiming themselves to be in possession of the property, whereas the fact remains that the respondent never claimed that he was in possession of the property. He merely stated that the same is in possession of some lessees, but without there being any trust worthy evidence in support of the same. What was strangely done by the learned court below was that after noticing that the land was more than 200 kanals and the market value thereof is not less than Rs. 5 crores, apprehending fatal-fued between the parties, directed for appointment of Tehsildar, Rania as receiver and to take immediate possession of the land which, in my view, was totally uncalled for considering the established possession of the petitioners on the land from the material placed on record, which could not be controverted by the respondent effectively. Reversal of an order granting injunction without disturbing the finding regarding the prima facie case; balance of convenience and irreparable loss is totally unsustainable in law. For the reasons mentioned above, the impugned order passed by the learned court is set aside and that of the trial court is restored. Before parting with the order, this court feels it appropriate to examine the conduct of Tehsildar, Rania, who was appointed Receiver by the court below. The prima facie reason therefor is that the learned court below passed the impugned order on 31.3.2010 directing appointment of Tehsildar, Rania as receiver. He was to take immediate possession of the suit property. The order was required to be sent through special messenger to Tehsildar, Rania for strict compliance. The petitioners approached this Court and on 7.4.2010, noticing the contentions of learned counsel for the petitioners in detail, this court passed the order directing status quo regarding possession of the property. Learned counsel for the petitioners pointed out that before passing of the order by this court, on 5.4.2010, Tehsildar, Rania merely got the order of the learned court below noted Civil Revision No. 2343 of 2010 [6] from the petitioners and no proceedings were taken on that date. The actual physical possession of the land was not taken. The order passed by this court was duly conveyed to Tehsildar, Rania. Though it was claimed by learned counsel for the respondent that the crop was harvested on 6.4.2010, however, from the Rapat Roznamcha produced on record by learned counsel for the petitioners in court shows that on 15.4.2010, it was noticed that the crop has been harvested and the residual thereof was put to auction, which was conducted and accepted in favour of Kirpal Singh son of Ajaib Singh. Two copies of form `J' dated 15.4.2010 have also been produced showing sale of 243 quintals of wheat by Tehsildar, Rania. It was further pointed out by learned counsel for the petitioners that as per their information, till date the sale proceeds of the crop have not been deposited in the court as per directions by the learned court below. If the crop stood harvested on 6.4.2010, as claimed by the respondent, as to why it was not sold for about 8-9 days and till date the amount has not been deposited in the court? The aforesaid facts prima facie establish that there is wilful violation of the order passed by this court. Let notice be issued to Tehsildar, Rania to show cause as to why proceedings for contempt be not initiated against him. The notice be served through Assistant Advocate General, Haryana, who is present in Court for 14.5.2010. A copy of the order be handed over to the Assistant Advocate General, Haryana by the Bench Secretary under his signatures. (Rajesh Bindal) Judge 5.5.2010 mk (Refer to Reporter)