Civil Revision No. 4491 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4491 of 2009 Date of Decision: August 11, 2009 Rajender Prasad ...... Petitioner Versus Thakar Ram ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. V.K.Jain, Senior Advocate with Mr. Anuj Balian, Advocate for the appellant. **** Ajay Tewari, J. This revision has been filed against the concurrent orders of the Courts below allowing an application for temporary injunction filed by the respondent,thereby protecting his possession. Learned Senior Advocate has raised two primary contentions. His first contention is that during the pendency of the proceedings before the trial Court parallel proceedings for correction of Khasra Girdawari were pending and the learned trial Court had specifically permitted those proceedings to continue. Further argues that pursuant to that, in fact the Khasra Girdawari was changed in favour of the petitioner. His first argument in law is that the learned Courts below declined to consider these subsequent events. The second argument of learned counsel is that even though it is correct that a trespasser cannot obtain an injunction against the true owner yet conversely if a true owner wants to take possession from the Civil Revision No. 4491 of 2009(O&M) 2 trespasser he can take the same only through due process of law and likewise he cannot be protected by giving him an injunction which in reality does not exist at the spot. I am afraid I do not agree with these submissions. The facts which have come on record are that the petitioner and the respondents were co-sharers in huge property in village Bhirdana, Tehsil and District Fatehabad along with many other co-sharers. The said property was partitioned by mutual agreement between the parties by way of affidavits filed by all the parties. This partition was admittedly finalised in the month of November, 2004. It is also not disputed that in that partition the property in dispute was allocated to the share of the respondents. It is not disputed that in the partition by consent all the co-sharers had been allocated their due share and thus the petitioner was also allocated his due share. It is against the backdrop of these facts that the arguments have to be tested. The petitioner claims that he was inducted as a tenant w.e.f. Hadi (Rabi) 2005 which in effect means that immediately after the partition was finalised after Saoni (Kharif) 2004, the petitioner was allegedly inducted as a lessee. There is no written proof attached by the petitioner with regard to that fact, either by way of lease deed or by way of receipt of payment of lease money. Apart from that I have myself considered the orders of correction of Khasra Girdawari on which great reliance has been sought to be placed on behalf of the petitioner. It is recorded in those orders that the petitioner is in possession. It is also recorded in those orders that the petitioner has taken forcible possession of this land. In this context I agree with the reasoning of the learned lower Appellate Court in para 12 of the order which is reproduced herein below:- Civil Revision No. 4491 of 2009(O&M) 3 “After hearing both the parties, I have come to a conclusion that the plaintiff by production of mutation No. 6019 by which the land was partitioned by the parties to the Khewat has successfully proved that he is in physical possession over the property in dispute as a co-sharer and the defendant is not in possession. The defendant has claimed tenancy over the property in dispute from Rabi 2005 after partition of the suit land but the defendant has not produced any record by which tenancy was created and he has also not produced any rent receipt regarding payment of Batai from Rabi 2005. Therefore, the tenancy of defendant cannot be believed. As far as application dated 08.10.2006 is concerned, I am of the considered opinion that in case a person in possession is threatened and even if the possession has been taken by any wrong doer for some time by trespassing overt the land. It cannot be considered that the wrong doer is in possession. If the plea of appellant is considered, the wrong doer will be granted a licence to come into possession of any property forcibly and to non-suit the adversary by their muscles while ignoring the law of land. Therefore, no benefit be given to the appellant-defendant on account of application dated 08.10.2006.” It is clear that the petitioner wants to eat his cake and have it also, since he wants to enjoy not only the share allocated to him but even Civil Revision No. 4491 of 2009(O&M) 4 that share which has been allocated to the respondents. ` It is for this reason that I do not consider the orders of the Courts below to be tainted with such material irregularity as to be subject to interference under Article 227 of the Constitution of India. Consequently this revision is dismissed. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE August 11, 2009 sunita