Civil Revision No.1219 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1219 of 2011(O&M) Date of Decision: February 24, 2011 Ramanjit Kaur and another .....Petitioners v. Arun Kumar .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Sanjeev Sharma, Advocate for the petitioners. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.5014-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.1219 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for quashing/setting aside impugned orders dated 24.12.2009, Annexure P11, passed by learned Civil Judge, Junior Division, Ropar, and 23.7.2010, Annexure P12, passed by learned Additional District Judge, Ropar. I have heard learned counsel for the petitioners and have gone through the whole record carefully, including the impugned orders passed by learned Courts below. Admitted facts are that father of respondent -plaintiff was a co- sharer in the land in dispute comprised in Khasra No.4659 and after the death of his father, his share has been inherited by the plaintiff and his mother, Smt.Babli Devi. Mutation was also entered in their favour. Defendant no.1 purchased property measuring 2 biswas being 2/41 share out of khasra No. 4646 adjoining to khasra no.4659 in which, respondent- plaintiff is a share-holder, as per sale deed dated 4.9.2009. It was alleged that petitioners-defendants tried to interfere in the possession of respondent- Civil Revision No.1219 of 2011(O&M) -2- plaintiff and tried to raise construction by encroaching upon the property owned by respondent-plaintiff and hence, the present suit for permanent injunction. During pendency of the suit, defendant no.1 exchanged the land, i.e., share of khasra No.4646 purchased by her vide sale deed dated 4.9.2009 with land measuring 2 biswas comprised in khasra no.4659 with another co-owner in the said khasra number, namely, Ashwani Bhanot, vide exchange deed dated 23.11.2009. Similarly, petitioner no.1-defendant no.2 also purchased 2 biswas of land in Khasra no.4646 vide sale deed dated 4.9.2009 and exchanged the same with equal land in khasra no.4659 vide exchange deed dated 23.11.2009. Plaintiff is claiming their earlier possession on the basis of co- owner in khasra no.4659, whereas defendants are claiming their possession for portion in khasra no.4659 by way of exchange, which allegedly took place during the pendency of the suit. Hence, taking into consideration these facts, learned trial Court came to the conclusion that a prima facie case is made out in favour of respondent-plaintiff and hence both the parties were directed to maintain status quo qua possession and construction over the suit property by allowing the application filed by respondent-plaintiff for temporary injunction by observing as under:- “5. From a bare perusal of the pleadings on record it emerges clearly that the co-ownership of the plaintiff/applicant over khasra numbers 4639 and 4659 is not a disputed fact. The defendants have admitted in their written statement that Jugal Kishore (father of the plaintiff) was a co-sharer in the suit property. Further the mutation of inheritance sanctioned in favour of the plaintiff /applicant is also not a subject matter of dispute between the parties. On the other hand the names of the either of the defendants do not find mention in the jamabandi for the year 2003-2004. The only plea on the basis of which the defendants are claiming to be co-owners of land comprised in khasra No.4659 is that they have exchanged the portion of land purchased by them in khasra no.4646 with the land owned by one Ashwani Bhanot and Baljinder Kaur falling in khasra Civil Revision No.1219 of 2011(O&M) -3- no.4659 vide an oral exchange arrangement later reduced into writing on 23.11.2009. Although oral exchange of property is permissible in Punjab but the genuineness, sanctity and legal enforceability of such exchange has to stand a strict test of evidence, especially when the same is not reflected anywhere in the revenue record. As far as the question of the transfer deeds executed on 23.11.2009 in favour of the defendants is concerned, it is imperative to observe that these transfer deeds have been executed much after the date of filing of the present suit and after the date of putting up of appearance of the defendants. This rather goes to show that the defendants got the written transfer deeds executed after filing of the present suit with an intention to cleverly cover up their own short comings. Although the defendants have claimed that they came in possession of the land comprised in Khasra No.4659 on the basis of oral exchange on 4.9.2009 but it remains unearthed as to what action was initiated by them since 4.9.2009 to get the revenue record updated to this effect. A presumption of truth is attached to the entries inked in the revenue record and at this stage the defendants have failed to rebut the same as their names are not reflected anywhere either in the column of ownership or possession. Further there is no other cogent or convincing document on record from which it can be even faintly inferrred that the defendans have ever come in lawful possession of the property comprised in khasra Nos.4659 or 4639, or that they have already constructed their houses in the said property. So when the factum of co- ownership of the defendants is itself gravely doubtful then the question of permitting them to raise construction in the disputed property during pendency of the dispute in hand, does not arise under any stretch of legal implication. 6. In view of the discussion above, this Court is of the firm view that the plaintiff has been successful in establishing a prima facie case in his favour. The Civil Revision No.1219 of 2011(O&M) -4- comparative hardship or inconvenience which is likely to occur by withholding the injunction is certainly greater than that which would arise by granting it. Irreparable loss would be occasioned to the plaintiff/applicant if the defendants succeed in raising construction over the suit property by encroaching over the share of the plaintiff/applicant. Accordingly, the application in hand stands allowed and the parties are directed to maintain status quo qua possession and construction over the suit property, till the matter in hand is finally adjudicated upon on merits.” Present petitioner-defendants filed appeal against the said order which was dismissed by learned appellate Court by observing as under:- “It is not disputed that the plaintiff is a co-sharer in Kh.Nos.8212/4639 and 4659. The defendants purchased two biswas each in Kh.No.4646. Aks Shajra placed on the file shows that Kh.No.4646 nowhere adjoins of the property of the plaintiff. The present suit was filed by the plaintiff on 12.11.2009 but as per case of the defendants, they have entered into an exchange of their share with one Ashwani Bhanot and Gurmit Singh out of Kh.No.4659. It shows that the defendants have executed the exchange deed during the pendency of the suit. The learned counsel for the defendants failed to show how the defendants were in possession of some portion out of Kh.No.4659 before the execution of the exchange deed of sale deed dated 4.9.2009. Jamabandi placed on the file does not depict the names of the defendants. It also shows that Kh.No.4659 is joint between the different co-sharers/co-owners. Ashwani Bhanot and Gurmit Singh could only deliver possession by way of exchange deed only if they were in possession of specific portion in Kh.No.4659(1-13). There is no prima facie evidence on the file to hold that Ashwani Bhanot and Gurmit Singh were in possession of any specific portion out of Kh.No.4659. In case, there is such exchange deed Civil Revision No.1219 of 2011(O&M) -5- executed between the defendants and Ashwani Bhanot etc. the status of the defendants will be that of a co-sharer and they can seek their share partitioned or in the alternative, they could get their share demarcated. In such circumstances, the ld. lower Court has rightly ordered both the parties to maintain status quo regarding possession and construction. There is no merit in the appeal and the same stands dismissed. Lower court record be sent back with a copy of this judgment and appeal file by consigned to the record room. Both the parties are directed to appear before the trial Court on the date fixed.” It has been contended by learned counsel for the petitioners that as the petitioners have become co-owners in the entire khasra number and in exclusive possession, respondent-plaintiff is having no right to seek injunction against them. On the point he has placed reliance upon Bachan Singh v. Swaran Singh, (2000-3) The Punjab Law Reporter 416, Tarsem Singh v. Parkash Kaur, 2002 (1) RCR (Civil) 803, and M/s DCM Shriram Consolidated Ltd. v. Jai Singh, 2006(2) RCR (Civil) 118. However, none of the aforesaid judgments are applicable to the present case, in view of the peculiar facts and circumstances of the present case. Respondent-plaintiff is original co-owner in the khasra number in dispute. Present petitioners are claiming right by way of sale of a share in another khasra number, i.e., 4646, which was lateron allegedly exchanged with khasra No.4659 during pendency of the suit. At this stage, there is nothing to show that the petitioners-defendants are in exclusive possession of any portion of the disputed khasra number. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned courts below in passing the impugned orders and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent Civil Revision No.1219 of 2011(O&M) -6- on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. The present revision petition is, hereby, dismissed being devoid of any merit. 24.2.2011 (Ram Chand Gupta) meenu Judge