C.R. No.7545 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.7545 of 2010 (O & M) Date of Decision: 22.12.2010 Isham Singh .....Petitioner Versus Shri Roshan Lal and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. R. M. Singh, Advocate for the petitioner. L. N. MITTAL, J (ORAL) Plaintiff-Isham Singh having failed in both the Courts below in securing temporary injunction has filed the instant revision petition under Article 227 of the Constitution of India to challenge orders of the Courts below. Plaintiff has alleged that his grandfather Nagda was owner of the suit land which devolved on plaintiff's father Assa Ram and uncle Nar Singh on the death of Nagda. Nar Singh died issueless. His share devolved on his widow Sita Devi. Plaintiff's father Assa Ram was cultivating the land of the share of Sita Devi and after the death of Assa Ram, plaintiff and his brother Jabbar Singh (since deceased and being represented by defendant Nos.2 to 4) had been cultivating the same. Sita Devi vide Will dated 26.09.1997 bequeathed her estate in favour of plaintiff and Jabbar Singh. Mutation No.2042 has also been sanctioned in favour of plaintiff and Jabbar Singh on the basis of Will. Now, plaintiff and defendant Nos.2 and 3 are in possession of the suit land. However, C.R. No.7545 of 2010 (O & M) -2- defendant No.1 has entered into sale agreement dated 07.09.2006 in respect of 38 kanals 17 marlas land with wives of defendant Nos.2 and 3. Thereupon, the plaintiff learnt that Sita Devi had transferred the said suit land in favour of defendant No.1 vide Civil Court decree dated 11.08.1990. The said decree has been challenged in the suit having been obtained by fraud and also being unregistered. Since defendant No.1 threatened to alienate the suit land and to take forcible and illegal possession thereof from the plaintiff and defendant Nos.2 and 3, the plaintiff filed suit claiming declaration and permanent injunction. By moving separate application, the plaintiff claimed temporary injunction restraining defendant No.1 from alienating the suit land and from interfering in possession of the plaintiff on the suit land during pendency of the suit. Defendant No.1 controverted the plaint allegations. It was pleaded that he was brought up by Sita Devi like her son. Sita Devi voluntarily suffered decree dated 11.08.1990 transferring the suit land to defendant No.1. Even alleged Will dated 26.09.1997 refers to transfer of the suit land in favour of defendant No.1. Validity of the consent decree dated 11.08.1990 was never challenged by Sita Devi during her life time. Defendant No.1 is in cultivating possession of the suit land measuring 34 kanals 12 marlas. Defendant Nos.2 to 4 also controverted the plaint allegations. Learned Civil Judge (Junior Division), Karnal vide impugned order dated 31.08.2009 Annexure P-3 dismissed the plaintiff's application for temporary injunction. Appeal preferred against the said order by the plaintiff has been dismissed by learned Additional District Judge, Karnal vide impugned judgment dated C.R. No.7545 of 2010 (O & M) -3- 30.07.2010 Annexure P-5. Feeling aggrieved, plaintiff has preferred the instant revision petition. I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner vehemently contended that vide khasra girdawari Annexure P-9, plaintiff is in possession of the suit land and, therefore, he cannot be dispossessed therefrom except in due course of law. The contention although apparently attractive is misconceived. Plaintiff got this khasra Girdwari recorded in his name in Kharif 2006 crop i.e just immediately before or after the filing of the suit which was instituted on 06.11.2006. Consequently, on the basis of this entry, the plaintiff cannot be held to be prima facie in possession of the suit land. On the contrary, the plaintiff also has prima facie no locus standi to challenge the consent decree suffered by Sita Deiv in favour of defendant No.1. The said decree is dated 11.08.1990. Sita Devi died on 05.11.1997 i.e more than seven years after the suffering of the consent decree. However, during her life time, Sita Devi never challenged the said decree. On the contrary, even after her death, the plaintiff filed the instant suit on 06.11.2006 i.e nine years after the death of Sita Devi. Thus for more than 16 years, the decree was never challenged. In this context, it is significant to notice that inheritance mutation Annexure P-8 of Sita Devi was sanctioned on 24.04.1998 i.e more than 8 ½ years before the filing of the suit. The said mutation was also not challenged by the plaintiff during this long period. The whole basis of the claim of the plaintiff is Will dated 26.09.1997 allegedly executed by Sita Devi in favour of Isham Singh- C.R. No.7545 of 2010 (O & M) -4- plaintiff and his brother. Two versions of the said Will Annexure P-6 and Annexure P-7 have been placed on trial Court file by the respective parties. However, even assuming Will Annexure P-6 relied on by the plaintiff to be prima facie correct at this stage, it does not help the plaintiff. Even according to this Will , the plaintiff was bequeathed 65 kanals 16 marlas land which he has got through mutation Annexure P-8. However, the plaintiff wants to stake claim to the suit land measuring 38 kanals 17 marlas which is in addition to 65 kanals 16 marlas bequeathed to the plaintiff through the aforesaid Will. As per said Will, the remaining land was bequeathed by Sita Devi to Jabbar Singh. Consequently, plaintiff has no right, title or interest in the suit land. Moreover, according to Will Annexure P-7, Sita Devi had already given 38 kanals 17 marlas land to defendant No.1 by way of family settlement. This recital in the Will corroborates the version of defendant No.1. There is another aspect of the matter. Land measuring 38 kanals 17 marlas which has been given to defendant No.1 through consent decree in question would otherwise fall to the share of Jabbar Singh even as per Will Annexure P-6. However, defendants No.2 to 4, who are heirs of Jabbar Singh, are not controverting the consent decree dated 11.08.1990, although the said decree adversely affect the rights of defendant Nos.2 to 4. On the contrary, the said decree does not adversely affects the rights of the plaintiff even under Will Annexure P-6. Thus examined from any angle, the plaintiff has no case for grant of temporary injunction. Both the Courts below have rightly exercised the discretion in declining temporary injunction to the plaintiff. The C.R. No.7545 of 2010 (O & M) -5- plaintiff has miserably failed to make out prima facie case for grant of temporary injunction. Balance of convenience is also not in his favour because no right of the plaintiff would be adversely affected if temporary injunction is not granted as even according to his own version, relying on Will Annexure P-6, plaintiff has no right, title or interest in the suit land covered by impugned consent decree. Consequently, balance of convenience also does not lie in favour of the plaintiff-petitioner. Impugned orders of the Courts below do not suffer from any illegality or jurisdictional error so as to warrant interference in exercise of revisional jurisdiction of this Court. The revision petition is completely meritless and is accordingly dismissed in limine. 22.12.2010. ( L. N. MITTAL ) A. Kaundal JUDGE