Civil Revision No. 5360 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 5360 of 2008 Date of decision: 6.10. 2009 Shiv Kumar and others ......petitioners Versus Khushi Ram and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.N.L.Sammi , Advocate. for the petitioners. None for respondent No.1. **** SABINA, J. Plaintiff-Khushi Ram filed a suit for declaration to the effect that the order and decree dated 12.4.1986 passed in civil suit No.223 of 10.4.1986 and subsequent Municipal Record on the said order and decree in favour of Bhola Ram, Chiman Lal and Bhagwan Dass were illegal, null and void. Along with the suit and application under Order 39 Rule 1 and 2 of the Code of Civil Procedure was filed. Vide order dated 4.1.2008, the said application was dismissed Civil Revision No. 5360 of 2008 2 by the learned Additional Civil Judge (Sr.Division), Jind. In app al, the said application was allowed by the learned Additional Di trict Judge, Jind vide impugned order dated 3.9.2008. Hence, the p sent revision petition has been filed under Article 227 of the Consti ution of India by defendants No.2 to 6. After hearing learned counsel for the petitioners, I am of the opinion that the present petition deserves to be allowed. The trial Court, while dismissing the application for interim injunction, in para Nos. 9 and 10 of its order, observed as under:- “9. That plaintiff has come forward after a lapse of more than 20 years and agitated a crucial factum that his father late Makhan Lal never suffered the impugned judgment and decree in favour of his father and his two brothers Chiman and Bhagwan Dass, the predecessor in interest of defendants No.2 to 6. It is too late in the day to simply and vaguely deny the passing of impugned judgment and decree. At this stage, there is no evidence available on the record to show that services of some imposter were procured in getting the impugned judgment and decree by producing some other person at the place of deceased Makhan Lal, father of plaintiff. The plaintiff has not taken the care to get the thumb impressions/signatures compared on the written statement, power of attorney and statement of alleged Civil Revision No. 5360 of 2008 3 Makhan Lal before the Civil Court with his admitted signatures and thumb impressions. The court proceedings are sacrosanct in nature and cannot be brushed aside merely on the asking of a particular party. 10. From the facts and circumstances a fair and reasonable assumption can be drawn as regard the implementation of the impugned judgment and decree because subsequently after the passing of the impugned judgment and decree, an another judgment and decree was passed by the civil court on 30.7.1994 in civil suit No.895 under title Bhagwan Dass versus Bhola etc. wherein that case Chiman Lal and Bhola Ram uncle and grand father of plaintiff allotted their 1/3 share in the suit property in favour of late Bhagwan Dass. Thus, it is prima facie proved on the file that during his life time Bhagwan Dass became exclusive owner of the suit property and it prima facie appears that plaintiff and proforma defendants are out of possession of the suit property. It is especially so when plaintiff himself admits that it is defendants No.2 and 3 Shiv Kumar and Gurmeet who are in exclusive possession of the shop. There is nothing on the record to show as to how, when and under what circumstances, the said defendants were permitted by Civil Revision No. 5360 of 2008 4 the plaintiff to continue in exclusive possession over the shop in dispute. On the other hand, a copy of panchayatnama placed on the record, which bears dated 12.4.1986 clearly cements the version of contesting defendants that a family settlement took place, wherein deceased Makhan Lal allotted has 1/1 share in the suit property in favour of his father Bhola and brothers Chiman Lal and Bhagwan Dass in equal shares. The copies of assessment register from 1999- 2001 and 2002 to 2008 clearly records Bhagwan Dass to be in exclusive possession of the shop in dispute. Hence, as a sequel to my above detailed discussion, since the plaintiff is neither owner nor in possession of the suit property. No irreparable loss and injury shall be caused to him if the stay application is declined because his predecessor in interest had already parted with the ownership and possession of the shit property and thus no balance of convenience in favour of the plaintiff. Therefore, the stay application is hereby dismissed.” The scope of jurisdiction of Appellate Court to interfere with an order passed by the trial Court on an application filed under Order 39 Rule 1 and 2 CPC is well settled. The Appellate Court can interfere with an order of the trial Court only where such order suffers Civil Revision No. 5360 of 2008 5 from clear violation of law or where the findings recorded by the trial Court on the issues of prima facie case, balance of convenience and irreparable injury are perverse. Mere possibility of the Appellate Court forming a different opinion on the basis of facts and evidence produced by the parties cannot be a valid ground for interference by the Appellate Court. Learned Additional District Judge had, thus, erred in reversing the order passed by the trial Court as the findings recorded by the trial Court on issues of prima facie case, balance of convenience and irreparable injury could not be said to be perverse. The suit has been filed by the plaintiff after a lapse of more than 20 years. The thumb impressions/signatures on the written statement, power of attorney and statement of Makhan Lal before the Court had not been got compared with his admitted signatures/thumb impressions. Defendants No.2 and 3 are admittedly in exclusive possession of the shop in dispute . Earlier to that Bhagwan Dass was in exclusive possession of the shop in dispute. In these circumstances, the learned trial Court had rightly dismissed the application for temporary injunction, whereas, the learned Additional District Judge had erred in allowing the same. Accordingly, this revision petition is allowed. The impugned order passed by the learned Additional District Judge is set aside and consequently, the order dated 4.1.2008 passed by the learned Additional Civil Judge (Sr.Division), Jind is upheld. Although Civil Revision No. 5360 of 2008 6 the principle of lis pendence would apply in case the petitioners alienate the suit property, yet in order to safeguard the interests of the parties, it is further observed that in case the petitioners alienate the suit property during the pendency of the suit, then the factum of pendency of the suit be mentioned in the deed/document executed by them at the time of alienation of the suit property. (SABINA) JUDGE October 06, 2009 anita