In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 1594 of 2009 (O&M) Date of decision: November 09, 2009 Mohan Singh .. Petitioner Vs. Brahma Nand Sharma and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. P.C. Suman, Advocate for the petitioner. Mr. Sandeep Bansal, Advocate for the respondent No.1. A.N. Jindal, J This revision petition is directed against the order dated 16.1.2009 passed by the learned Additional District Judge, Hoshiarpur, dismissing the appeal of the petitioner against the order of temporary injunction dated 17.2.2007 passed by the Civil Judge (Sr. Division), Hoshiarpur, restraining the defendant-petitioner from interfering in the possession of the plaintiff-respondent No.1 (herein referred as 'the plaintiff') and to pass any vehicle through it during the pendency of the suit. Factual background of the case is that the plaintiff in his suit for injunction pleaded that he had taken the suit property on rent from Babu Singh son of Narain Singh @ Rs.75/- per month and since then he is in possession of the same and is running a school in the name and style of Guru Nanak National Public School, Mahilpur. Thereafter he has been paying rent to Baldeep Kaur daughter of Babu Singh, then to Balinder Kaur and thereafter to Surjit Kaur. At present, he is paying rent to Sanjiv Kumar Sharma who inherited the property from Surjit Kaur. There is some space on the eastern side of the property which is used as play ground by the students and even see-saw (jhulla) and rocking board etc. are installed therein. They had also installed urinals and toilets for the children. The defendant No.1-petitioner (herein referred as 'the defendant No.1') has no right, title or interest in the property, therefore, they be restrained from interfering in their possession or using the same by passing their vehicles. Civil Revision No. 1594 of 2009 -2- *** The suit as well as the application were contested by the defendant No.1 and the performa defendants. While admitting that the defendant No.1 is a tenant in a double storey building constructed upon the portion of Khasra No.51//14/4, it was denied that the respondent No.1 was in possession to the entire property comprising in khasra No.51//14/4 in the capacity as tenant. It was further averred that in fact open space/passage is being used by the defendant No.1 and other co-sharerers in the agricultural land adjoining the open space. It was also elaborated that the plaintiff wanted to grab the whole property by depriving the defendant No.1 and other persons of the use of open space as passage. It was also alleged that the defendant No.1 and the performa defendants had been passing their tractor trolleys through the said passage for approaching the land comprising of Khasra No.51//14/6, 14/7, 15/1, 15/2 and further that the defendant No.1 and the performa defendants never tried to close the passage. The defendant No.1 and performa defendants in fact are entitled to pass their vehicles with the agricultural produce and their implements through the said passage. Consequently, they prayed for dismissal of the application. The trial court granted injunction to the plaintiff. The appeal preferred by Mohan Singh defendant No.1 has been dismissed. The main plank of the arguments advanced by the learned counsel for the defendant No.1 is that the land comprising in Khasra No.51//14/4 (1-3) is joint of the parties including Sanjiv Kumar, Mohan Singh and Sansar Singh and they are in joint possession of the said property. Babu Singh had intentionally rented out the building to the plaintiffs. After Babu Singh, Baldeep Kaur started receiving rent and thereafter Balinder Kaur then Surjit Kaur and ultimately Sanjiv Kumar started receiving rent of the said property. The main question to be determined in the case is as to how much portion of Khasra No.51//14/4 was given to the plaintiff on rent which is necessary to determine prima facie case in his favour. The plaintiff was to prove the following facts :- (i)Whether the vacant area on the eastern side of the building comprised in khasra No.51//14/4 (1-3) is a part of tenancy of Civil Revision No. 1594 of 2009 -3- *** the plaintiff. The plaintiff has failed to prove this fact. No rent note has been brought on record but the plaintiff has placed reliance on certain receipts issued by Surjit Kaur or Baldeep Kaur. The first receipt which was issued on 29.6.1976 refers to only the building which is the subject matter of the tenancy and it does not refer to the area in which the plaintiff alleges to be a playground on the eastern side. This area is stated to be vacant. Not only this, the latest receipts also refer to the building which is on rent and not the play ground. The fact remains that the defendant No.1 and the other co-sharers remained in joint possession of vacant area. Though, the portion of land comprised in Khasra No.51//14/4 underneath the building came in exclusive possession of Babu Singh and thereafter of Sanjiv Kumar, yet the case of the defendant is that apart from the building under tenancy, there is a passage on the eastern side of the school (allegedly play ground) which leads to Khasra No.51//14/6 and 51//14/7 which is joint of the other co- sharers including the defendant and the plaintiff in order to obtain the injunction has suppressed the true facts and has fixed jhullas over the part of the property on the eastern side of the school. He wants to bring this passage into his exclusive use by preventing the defendant from using it for their egress and ingress to their land on the eastern and southern side of the alleged disputed property. It may further be observed that Sanjiv Kumar has only 62 shares in the Khasra number in question and is not in exclusive possession of any portion of the said khasra number, therefore, the defendant No.1 and other co-sharers could use the vacant area comprised in the said khasra number being co-sharers in a husband like manner and the plaintiffs having not proved any prima facie case in their favour by proving that plaintiff No.1 had taken the whole of the khasra number on rent from Sanjiv Kumar, could not seek injunction against the defendants. The trial court appears to have passed the injunction order merely on the assumption that whole of the khasra number is on rent with the plaintiff, but this assumption is against the facts as no document has been brought on record in order to establish if vacant area on the eastern side of the school forms part of the tenancy in the hands of the petitioner. Thus, the impugned order has been rendered perverse, arbitrary and against facts inviting interference Civil Revision No. 1594 of 2009 -4- *** by this court. The plaintiff has failed to prima facie establish from any document if the plaintiff No.1 or Sanjiv Kumar were in exclusive possession of the entire khasra No.51//14/4 (1-3). Merely placing temporary installations over the joint land does not make out a case of exclusive possession of a co-sharer or a tenant under him. The plaintiff on taking building on tenancy, in the absence of any instrument regarding tenancy of the open area, cannot claim the same to be part of his tenancy. As such, he cannot stop other co-sharers from passing through the open area as they were fully within their rights to use the joint land in a husband like manner. Consequently, balance of convenience also does not lie in favour of the plaintiffs. Resultantly, while holding that the trial court did not reach the core of the issue while deciding about the prima facie case in favour of the plaintiff, granted injunction which has resulted into miscarriage of justice inviting interference by this court. Resultantly, I accept the revision petition, set aside the impugned order and dismiss the application for temporary injunction. November 09, 2009 (A.N. Jindal) deepak Judge