Civil Revision No. 4007 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 4007 of 2009 Date of decision: 23.10. 2009 Barkha Ram and others ......petitioners Versus Ram Sarup and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.M.Ravi , Advocate. for the petitioners. Mr.D.S.Nain, Advocate for Mr.N.S.Dhillon, Advocate, for the respondents. **** SABINA, J. Vide this revision petition, filed under Article 227 of the Constitution of India, the petitioners have challenged the order dated 13.5.2009 passed by the Civil Judge (Jr.Division), Kurukshetra . Plaintiffs-petitioners filed a suit for permanent injunction. Vide the impugned order, the application for restoration of Civil Revision No. 4007 of 2009 2 possession of Khasra No. 8//1/2 (4-13) and 8//9/2(4-2) was disposed of by framing an additional issue as under:- “1A. Whether the plaintiffs are in possession of Khasra No.8//1/2 (4-13) and 8//9/2 (4-2)? OPP” It was further held that evidence was necessary to determine as to whether the plaintiffs were in possession of the suit property or the defendants were in possession of the suit property. Hence, the issue 1-A was framed in this regard. Aggrieved by the said order, the petitioners have filed the present revision petition. Learned counsel for the petitioners has submitted that the partition proceedings were complete between the parties. As per Rapat Roznamcha dated 19.6.2006, possession of khasra numbers in dispute was handed over to the plaintiffs by the Additional Kanungo in pursuance of the partition proceedings. Hence, no further evidence was necessary for determining as to whether the plaintiffs or the defendants were in possession of the suit property. Learned counsel for the respondents, on the other hand, has submitted that a compromise had been effected between the parties on 28.6.2006 and as per the same, the suit property was in possession of the respondents-defendants. Learned counsel has further submitted that the partition proceedings were not complete so far as the matter was still pending before the Financial Civil Revision No. 4007 of 2009 3 Commissioner, Revenue. After hearing learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. Along with the suit for permanent injunction, plaintiffs had filed an application under Order 39 Rule 1 and 2 Code of Civil Procedure. Vide order dated 19.9.2006, the application for interim injunction was allowed and defendants were restrained from dis- possessing the plaintiffs from the suit property. The appeal filed against the said order was dismissed by the lower Appellate Court. Thereafter, in revision, the matter was remanded back to the trial Court by this Court vide order dated 23.11.2007 in Civil Revision No.1559 of 2007 to decide the matter afresh after considering the compromise dated 28.6.2006. The trial Court vide order dated 10.12.2007 again restrained the defendants from interfering in the peaceful possession of the plaintiffs and from dispossessing them from the suit land. The plaintiffs moved an application for providing police help to them for maintenance of the order of temporary injunction passed by the trial Court. The said application was dismissed by the trial Court vide order dated 8.4.2008. In revision filed by the petitioners, this Court directed the trial Court to decide the application for seeking restoration of possession vide order dated 29.1.2009 in Civil Reivision No.2845 of 2008. Learned trial Court vide the impugned order, held that Civil Revision No. 4007 of 2009 4 since both the parties claimed their possession over the property in dispute, additional issue 1-A (reproduced above) was necessary to be framed. Application was filed by the plaintiffs for restoration of possession to them over khasra No.8//1/2(4-13) and 8//9/2 (4-2). Defendants had dispossessed the plaintiffs from the said khasra numbers on 1.4.2008. As per the report of the Local Commissioner, appointed on an application filed by defendants, khasra numbers 4/21, 4/22 and 4/23 were not worth cultivation as there were pits, ditches and road. The report of the Local Commissioner was prepared on 3.5.2008 and was received in the Court on 15.5.2008. Admittedly, the partition proceedings were carried on with regard to the land jointly owned by the parties. The relevant document in this case is the Rapat Roznamcha (Annexure P-13) dated 19.6.2006. The same reads as under:- “Report: Proceedings regarding possession as per order of the Court of Assistant Collector IInd Grade, Thanesar in the case titled as Barkha Ram vs. Banarsi Dass etc. village Adhon, Tehsil Thanesar, District Kurukshetra. Today as per programme for executing proceedings regarding possession in the aforementioned case, we are present in village Adhon along with the record. In addition to this, other persons are also present whose signatures Civil Revision No. 4007 of 2009 5 and thumb impressions are appended below. Applicant Barkha Ram and respondent Ram Swarup, Dhan Singh, Sarwan etc. are also present. The information regarding proceedings of possession was already given through Halqua Patwari of which Parwana is enclosed herewith. The respondents were asked about stay orders from any Court. No stay order was received. Possession of Khasra numbers 7/6, 8//1/2, 9/2, 10, 13/10/1/1/, 5 Kittas land measuring 30 kanals 3 Marlas according to Fard with measurement (FITTA) of 100 foot by marking with Kassi was given to the applicant Barkha Ram son of Banarsi and possessin of Khasra numbers 4//21,22,23, 8//1/1/1, 2, 9/1, 12/1, 13//10/1/2, 10/2, 10 kittas land measuring 36 kanals 5 marlas was given to respondents Ram Swarup etc. on the spot. No dispute arose on the spot and all agreed to it. In khasra numbers 8//1/2 land measuring 4 kanal 13 marla the crop of rice was sown by respondent Ram Swarup, which was gone in possession of the applicant Barkha Ram. When asked regarding compensation of the same, the applicant and respondents stated that they would calculate with the help of Panchayat and there is no need to impose compensation. Signatures of all have been appended. Proceedings have been entered into in Rapat Roznamcha Civil Revision No. 4007 of 2009 6 at serial No.524. Halqua Patwari was advised to enter Intkal of the proceeding as per the partition and thereafter report the compliance of the same.” Thus, as per the Rapat Roznamcha, possession of the khasra numbers in question was handed over to the plaintiffs Barkha Ram etc. However, the defendants have taken the possession of the khasra numbers in question on 1.4.2008 i.e. during the pendency of the suit. The plaintiffs had been successful in establishing their possession over the khasra numbers in dispute after partition of the property jointly owned by the parties by placing on record the Rapat Roznamcha reproduced above. The mutual compromise alleged to have been executed between the parties on 28.6.2006 was not implemented as per the case of the defendants themselves. Moreover, there is nothing on record to suggest that the compromise dated 28.6.2006 was ever incorporated in the revenue record. In these circumstances, learned trial Court had directed the defendants not to interfere in the peaceful possession of the plaintiffs and from dis-possessing the plaintiffs from the suit land. However, in clear violation of the said order, the defendants have dis-possessed the plaintiffs from the khasra numbers in dispute regarding which the possession had been handed over to the plaintiffs after completion of partition proceedings on 19.6.2006. Learned trial Court erred in holding that an issue was necessary to be framed as to whether the plaintiffs were in Civil Revision No. 4007 of 2009 7 possession of the khasra numbers in dispute, whereas, the plaintiffs had prima facie established on record that they had been given the possession of the khasra numbers in dispute vide order dated 19.6.2006. The defendants had taken possession of the khasra numbers in dispute during the pendency of the suit. In these circumstances, the application filed by the plaintiffs-petitioners for restoration of possession was liable to be allowed and the learned trial Court has erred in not allowing the same. Accordingly, this revision petition is allowed and the impugned order is set aside. Consequently, the application filed by the plaintiffs-petitioners for restoration of possession of khasra Nos.8//1/2(4-13) and 8//9/2 (4-2) is allowed. (SABINA) JUDGE October 23 , 2009 anita