C.R. No. 230 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 230 of 2009 Date of decision:- 16.01.2009. Milkha Singh ...Petitioner Versus Avtar Singh ...Respondent CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. Ram Bilas Gupta, Advocate for the petitioner. JASWANT SINGH J. The present revision petition under Article 227 of the Constitution of India has been filed by the petitioner-defendant-Milkha Singh for setting aside the impugned order dated 23.07.2008 passed by learned Additional Civil Judge (Senior Division) Baba Bakala, District Amritsar, vide which the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed by respondent-plaintiff-Avtar Singh was allowed and the petitioner-defendant was restrained from interfering into the possession of the plaintiff and also not to disposses him from the suit property illegally and forcibly, except in due course of law during the pendency of the suit; as well as order dated 28.11.2008 passed by learned Additional District Judge, Amritsar vide which the order dated 23.07.2008 has been affirmed in appeal. The factual position of the case is as under:- One Charan Singh had three daughters namely Surinder Kaur, Jagir Kaur and Amarjit Kaur as well as two sons namely Harbans Singh and C.R. No. 230 of 2009 -2- Amarjit Singh. Charan Singh was the owner of the land measuring 33 Killas and he died on 31.05.2005. Consequently, Dhanwant Kaur widow of late Charan Singh as well as her three daughters and two sons named above inherited the land mentioned above and mutation No.6322 was sanctioned. Jagir Kaur and Amarjit Kaur sold their share mentioning specific khasra number in favour of the petitioner-Milkha Singh vide registered sale deed 28.03.2008. Similarly, Surinder Kaur sold her share in favour of the appellant Milkha Singh vide sale deed dated 04.04.2008 and he has claimed the ownership on the basis of these two sale deeds. Civil suit was filed by respondent-plaintiff Avtar Singh for permanent injunction on 19.04.2008 restraining the appellant-defendant Milkha Singh from interfering into the peaceful possession of the land in dispute, detailed in the head-note of the plaint except in due course of law. Alongwith the suit, an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was also filed for interim injunction. There is specific averment in the plaint that the suit property is in exclusive possession of respondent-plaintiff but petitioner-defendant on the basis of above two sale deeds dated 28.03.2008 and 04.04.2008 is threatening to interfere in his (plaintiff's) possession. Both the Courts below have came to the conclusion that prima facie case in favour of the plaintiff is made out and on the basis of revenue record prima facie, it is proved that he is in exclusive possession of the property in dispute and keeping in view the fact that balance of convenience also lies in favour of the plaintiff, his possession be protected. Accordingly, the interim injunction was granted by learned Trial Court and upheld by the learned first Appellate Court. All three ingredients of interim injunction are proved C.R. No. 230 of 2009 -3- in favour of the plaintiff-respondent and it is based upon jamabandi and khasra girdawaris. Both the Courts below have rightly came to the conclusion that on the basis of above two sale deeds, petitioner-defendant might have become the co-sharer in the suit property but it is not established that he was put into physical possession of the land in dispute on the basis of above two sale deeds but on the contrary, Courts below have perused the jamabandi for the year 2002-03 relating to the property in dispute in which the possession of plaintiff-respondent Avtar Singh is prima-facie proved and the khasra girdawaris also show that the property in dispute is under the exclusive cultivation of the plaintiff-respondent. When both the Courts below have exercised their discretion judiciously and came to the conclusion that prima-facie the plaintiff- respondent is in exclusive possession of the land in dispute as a co-sharer then the discretion has been rightly exercised to protect his possession during the pendency of the civil suit. Although it is alleged by the petitioner-defendant that he purchased the land in dispute by way of registered sale deed dated 28.03.2008 and 04.04.2008 from the share of Charan Singh to the extent of 27 Kanal 6 ½ Marla and there is specific mention of khasra number in para 7(V) of the present revision petition but undisputedly, Charan Singh has died on 31.05.2005, therefore, the assertion of the plaintiff is misplaced and at best he might have purchased the share of the daughters of Charan Singh and undisputedly as mentioned in grounds 7 (VII) of the present revision petition no partition has taken place so far. Therefore, the contention of the petitioner that on the basis of sale deed he is having the possession of the suit land, has rightly not been accepted by both the Courts below while deciding the application under C.R. No. 230 of 2009 -4- Order 39 Rules 1 and 2 of CPC. The parameters of interim injunction are very clearly defined and settled, which are as under:- Prima facie case; balance of convenience and irreperable loss and injury. The plaintiff has prima facie proved that he is in possession of the suit land and in case he is dispossessed then he will suffer irreperable loss and injury and which could not be compensated. The petitioner has not pointed out any perversity in the discretion exercised by both the Courts below. The appropriate remedy of the petitioner is to get the partition and then seek his possession according to law. There is no ground made out to interfere into the discretion exercised by both the Courts below while entertaining the present revision petition under Article 227 of the Constitution of India. No merits. Dismissed. January 16, 2009 (JASWANT SINGH) vj JUDGE