C.R. No. 5227 of 2010 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 5227 of 2010 (O&M) Date of Decision : 19.08.2010 Bibi & others .......... Petitioners Versus Sukhmander Kaur @ Nikki & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. S.C.Pathela, Advocate for the petitioners. **** VINOD K. SHARMA, J. (ORAL) This revision petition is directed against the order dated 4.6.2010, passed by the learned Addl. District Judge ( Adhoc), Fast Tract Court, Faridkot, vide which the appeal filed by the respondents against the dismissal of the injunction application by the learned trial Court was accepted, whereas the injunction application moved by the petitioners was ordered to be dismissed. The petitioners filed a suit for declaration, that the sale deed executed by defendant No.3, in favour of the vendees was illegal, null and void and not binding on the rights of the petitioners, as no such authority of sale was given to defendant No.3, who is real brother of the petitioners. In the plaint, it was pleaded, that possession of the land in dispute was given to defendant No.3, for the purpose of C.R. No. 5227 of 2010 -2- ***** management, and only to look after the property. No right of alienation or mortgage was given to him. Nor in the power of attorney, he was permitted to sell the property. The sale was, therefore, outcome of and fraud misrepresentation. The petitioners also moved an application for injunction, against alienation of the suit property during the pendency of the suit. Second suit was filed by the respondents for injunction restraining the petitioners herein, from interfering in their possession, on the ground, that they are owners in possession of the suit property, on the basis of registered sale deed, executed by the attorney of the petitioner in their favour. The learned trial Court dismissed both the applications. In appeal the learned lower appellate Court allowed the appeal filed by the respondents, for injunction restraining the petitioners herein from interfering in their possession. The appeal filed by the petitioners against the order, vide which their application for grant of injunction against the alienation was rejected, was ordered to be dismissed. The learned counsel for the petitioners, showed his ignorance about the injunction application filed by the petitioners. The learned counsel challenged the order passed by the learned lower appellate Court, in favour of the respondents, vide which the petitioners were restrained from interfering in possession of the defendants. The contention raised by the learned counsel for the C.R. No. 5227 of 2010 -3- ***** petitioners was that defendant No.3 i.e. Attorney of the petitioners was the real brother of the petitioners, who committed a fraud with the plaintiff / petitioners by selling the land to the respondents, even though, he had no such authority. It is also the contention of the learned counsel for the petitioners, that the learned lower appellate Court wrongly recorded that no complaint was made. Whereas, a criminal case has been filed against the attorney by the petitioners, and the proceedings against him are pending, wherein he has been charge-sheeted. It is also the contention of the learned counsel for the petitioners, that the revenue entries i.e. Jamabandis, still show the petitioners to be in possession of the property. Therefore, there was no occasion for the learned lower appellate Court to grant injunction, in favour of the respondents that too against true owner. The learned counsel for the petitioners also contended, that the learned lower appellate Court failed to notice, that fraud had been committed, as the sale was in favour of the daughters. On consideration, I find no force in the contentions raised by the learned counsel for the petitioners. Registration of criminal case is independent of the civil proceedings, as the Civil Court has to adjudicate the application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, on the basis of pleading and documents on record. It is admitted case of the petitioners, themselves was that possession of the property was with the attorney, in that eventuality C.R. No. 5227 of 2010 -4- ***** sale deed on record shows, that the petitioners, through their attorney handed over the possession to the vendees, it has to be held that it was the respondents who were in possession of the property as owners. The contention of the learned counsel for the petitioners, that grant of injunction against the true owner is totally misconceived as the registered owners are the respondents and not the petitioners. The learned counsel for the petitioners contended, that because of the revenue record the petitioners are also held to be in possession, is also misconceived, as it is settled law, that though presumption of truth is attached to the revenue record but is rebuttable. The registered sale deed was produced showing that possession handed over to the respondents, with this the presumption stood rebutted. The pleading & documents on record show that the respondents are in possession of the suit property, therefore, the learned Appellate Court was right in granting injunction. The contention of the learned counsel for the petitioners, that fraud has been played with the petitioner, again is noticed to be rejected, for the reason, that the fraud has to be pleaded and proved like in a criminal offence, unless a finding is recorded in this regard, no presumption of fraud can be drawn. The learned lower appellate Court rightly granted injunction by taking into consideration the three principles i.e. Prima facie case, balance of convenience and irreparable loss. C.R. No. 5227 of 2010 -5- ***** It is pertinent to mention that the learned appellate Court had also held that the petitioners can recover the money received by the attorney from the vendees. In view of the findings recorded, there is no merit in this revision, which is ordered to be dismissed, but with no order as to costs. However, nothing stated above, may not be treated to be an expression of an opinion on the merits of the case. The learned trial Court shall decide the case after the parties are allowed to lead their respective evidence. 19.08.2010 (VINOD K. SHARMA) 'sp' JUDGE