CR No.141 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.141 of 2009 (O&M) Date of decision: 13.1.2009 Mani Ram ......Petitioner Versus Ram Singh and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Salil Bali, Advocate for the petitioner. * * * Rakesh Kumar Garg, J. The plaintiff-petitioner has filed the present petition challenging the order dated 31.3.2008 passed by the Additional Civil Judge (Sr. Division), Fatehabad and order dated 23.10.2008 passed by the District Judge, Fatehabad whereby his application under Order 39 Rules 1 & 2 CPC for restraining defendant No.3 from installing the tower over the land obtained by it on lease from defendant No.1, has been dismissed. The case of the plaintiff-petitioner, in brief, is that the land in dispute was previously in the ownership of Ram Partap, father of plaintiff No.1 and defendant No.2 and after his death, plaintiff No.1 and defendant No.2 are continuing as owners of the same. Plaintiff No.1 and defendant No.2 were given this plot in equal share by their deceased father during his life time and since then, they are continuing in possession of the same. Thereafter, plaintiff No.1 Mani Ram agreed to sell his half share in the plot in dispute to plaintiff No.2 vide agreement dated 22.5.2007 and received the entire sale consideration of Rs.40,000/- Defendant No.2 has also sold his share to defendant No.1-Ram Singh. Defendant No.3 wanted to install a mobile tower in village Nadhori while defendants No.1 and 2 wanted to CR No.141 of 2009 (O&M) 2 hand over the plot to defendant No.3. The installation of tower was stated to be illegal as due to the installation of the said tower, the inhabitants of the village would be under threat as it could fall at any time due to storm etc. Besides that due to the installation of generator, the noise could make the life of the residents miserable due to creation of lot of nuisance. Due to the raising of the tower, the nearby people would be badly affected. The plaintiffs had also moved an application to the Naib Tehsildar Bhuna who has reported that the installation of tower inside the Abadi is dangerous. It was stated in the plaint that the defendants were bent upon installing the tower and if they succeed, the plaintiffs would suffer an irreparable loss. On the other hand, the defendants resisted the suit as well as the injunction application filed by the plaintiffs by filing their written statement and reply to the injunction application therein alleging that Ram Partap son of Har Lal was having two sons, namely, Mani Ram i.e. plaintiff No.1 and Richhpal i.e. defendant No.2. In the month of May, 2000, plaintiff No.1 had taken out his share from the property of his father Ram Partap and thus, had separated from his father. With the consent of plaintiff No.1, land measuring 40 kanals 19 marlas owned by Ram Partap was sold to Prithvi Singh son of Sahi Ram for a consideration of Rs.4,28,000/- and sale consideration was taken by plaintiff No.1 Mani Ram. Thereafter, he had got no connection whatsoever in the property of his father Ram Partap. On 9.5.2000, he had executed an affidavit duly executed by the Executive Magistrate, Bhuna, to the effect that he had taken his share from the property of his father and now, he has got no concern with the property of his father. On 4.5.2000, Ram Partap had sold his house situated in Lal dora of village Nadhori to his other son Richhpal for a consideration of Rs.1,00,000/- vide agreement to sell dated 4.5.2000 and handed over the possession of the house to defendant No.2. Defendant No.2 removed the CR No.141 of 2009 (O&M) 3 construction from the plot measuring 2 kanals and then agreed to sell half of the plot to defendant No.1 Ram Singh vide agreement dated 22.3.2007 and defendant No.1 had obtained no objection certificate from the Gram Panchayat of village Nadhori to give the abovesaid plot on lease to Reliance Communications for construction of tower. Defendant No.1 has also entered into a lease agreement with defendant No.3 for construction of tower and then handed over the possession of the plot to defendant No.3 and now defendant No.3 was in possession of the abovesaid plot and he has right and authority to construct the tower and thus, the question of any irreparable loss to the plaintiffs did not arise. Learned counsel for the plaintiff-petitioner has vehemently argued that admittedly the plot in question belonged to the father of the petitioner and respondent No.2 and therefore, Richhpal -respondent No.2 alone could not give half share of land for erection of tower to respondent No.3 i.e. Reliance Communications. The suit is yet to be adjudicated and and the evidence has yet to come on record regarding the ownership of the plot and therefore, it was incumbent upon the Courts below to restrain the respondents from erecting the tower on the disputed plot. Apart from this issue, the respondents are out to erect a tower in the middle of Abadi Deh which would be dangerous to the life and property of the villagers and therefore, the action of the respondents is totally illegal and deserves to be stopped and it is in the interest of justice that impugned order Annexures P- 6 and P-7 passed by the Courts below be set aside and application for interim stay filed by the petitioner be allowed. I have heard learned counsel for the petitioner. However, I find no merit in this petition. From the facts and circumstances of the present case, it is amply clear that undisputedly, the property in dispute previously belonged CR No.141 of 2009 (O&M) 4 to Ram Partap, father of plaintiff No.1 and defendant No.2. The claim of the plaintiff No.1 that he was the owner of the half share of the disputed plot is not substantiated from any records on the file. It is the case of the plaintiff himself that he had sold his share in the suit land in dispute vide agreement dated 22.5.2007 to plaintiff No.2 for a sum of Rs.40,000/- and defendant No.2 had also executed some agreement regarding his share with defendant No.1 Ram Singh. Thus, the plaintiff No.1-petitioner has been left with no interest in the suit land and he cannot have any grievance. Sadhu Ram to whom plaintiff No.1-petitioner, sold his share is also a co-plaintiff in the suit; however, he is not aggrieved with the impugned order of the trial Court dated 31.3.2008 whereby his application for interim stay was dismissed as he did not challenge the said order. The plaintiff No.1-petitioner cannot be allowed to contend that he has any right of ownership whatsoever over the suit land. The other ground raised by the petitioner is also without any basis as the Gram Panchayat of the village through its Sarpanch has given its no objection certificate. In view of the foregoing discussion, no illegality or irregularity can be found in the impugned order so as to warrant interference therein. Hence, this petition is without any merit and the same is hereby dismissed. January 13, 2009 (RAKESH KUMAR GARG) ps JUDGE