Civil Revision No.2129 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2129 of 2011(O&M) Date of Decision: April 6, 2011 Balbir Singh and another .....Petitioners v. Mohinder Singh Virk and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.B.R.Mahajan, Advocate for the petitioners. ...... RAM CHAND GUPTA, J.(Oral) C.M.No.8430-CII of 2011 Requests for placing on record Annexures P1 to P9. The same are taken on record subject to all just exceptions. Application stands disposed of accordingly. Civil Revision No.2129 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for quashing/setting aside order dated 11.5.2009, Annexure P1, passed by learned Civil Judge, Junior Division, Gidderbaha, allowing application of the respondent-plaintiff filed under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (hereinafter to be referred as `the Code') and the judgment dated 17.3.2010, Annexure P2, passed by learned District Judge, Muktsar, dismissing the appeal against order Annexure P1. 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. Facts relevant for the decision of present revision petition are that both the parties are claiming right in the property through common ancestor Kirpal Singh. Both the parties are co-owners in possession of the Civil Revision No.2129 of 2011(O&M) -2- land in dispute. Partition has not yet taken place as per metes and bounds and rather a petition for partition has been filed by respondent-plaintiff before Assistant Collector, Ist Grade, Gidderbaha and the partition proceedings are still pending. The present suit has been filed by respondent-plaintiff seeking injunction against present petitioners- defendants restraining them from changing the nature of the property in dispute by raising construction till the partition proceedings are decided and till the land is partitioned, as per respective shares of the parties. The application filed under Order 39 Rules 1 and 2 read with Section 151 of the Code was accepted by learned trial Court by observing as under:- “9. The facts of the present case in hand clearly comes in consonance with the law laid down by the Honourable Punjab and Haryana High Court as discussed above as in the case in hand also it has been clearly established on record that the suit property is joint property among the co-sharers and plaintiff is still co-sharer in the suit land and defendants failed to establish on record that the suit property has been actually partitioned. Accordingly, after going through the respective submissions raised by both the counsel and in the arena of law laid down by Honourable Punjab and Haryana High Court (supra), this Court is of considered opinion that prima facie case is made out in favour of the plaintiff and balance of convenience also lies in his favour. He will suffer an irreparable loss in case defendants succeed in raising construction over the joint suit property which will be detrimental to the rights of the plaintiff. Consequently the application U/O 39 Rules 1 and 2 is allowed and defendants are restrained from raising any sought of construction or changing the nature of the suit land as fully detailed in the head note of the plaint in any manner, without getting it partitioned.” Appeal filed against the said order was dismissed by learned District Judge, Muktsar, by observing as under:- Civil Revision No.2129 of 2011(O&M) -3- “4. I have heard the learned counsel for the parties at considerable length and have also examined the record, of the case carefully. The point in controversy raging between the parties is as to whether the suit property is joint property of the parties or it has been partitioned or not or whether the defendants have raised any construction thereupon and if so its effect. The stand of the defendants is that they are in exclusive possession of the suit property and have also raised construction over some of the khasra numbers, as detailed above. Now the record on the file has to be examined by this Court for finding prima facie case of the matter as interim injunction can be granted in favour of a party only if prima facie case is made out, balance of convenience also lies in his favour and he is likely to suffer irreparable loss with the decline of interim injunction. On the fulfillment of above referred three ingredients, the Courts issue the interim injunction in favour of a party. Keeping in view the above referred basic ingredients governing application under Order 39 Rules 1 and 2 CPC, this Court proceeds to examine the documents on the record. Vide copy of jamabandi for the year 2004-05, the parties are recorded joint owners in the suit property and it has not been partitioned as per copy of jamabandi on the record and statutory presumption of truth is attached to the entry of jamabandi. Similarly, copies of khasra girdawaris for the year from 1990-91 to 2008-09 have reiterated the joint-ness of the suit property. The plaintiff has also filed an application for partition of the suit land which is pending before A.C.I-Grade, Malout. Vide certified copyof application dated 19.9.2009, placed on the record, it has been indicated that partition proceedings are pending before the revenue authorities between the parties qua the suit property. So far as the fact that the suit property had already been partitioned is not prima facie established by any document on the record. The photostat copy of the conveyance deed Civil Revision No.2129 of 2011(O&M) -4- executed by Saun Singh in favour of Kulwant Singh etc. dated 13.3.1984 has only shown that shares in the property in dispute were sold. The judgment of Court of Additional District Judge, Faridkot, dated 30.3.1999, has further proved that plaintiff has been found a co-sharer on the basis of natural succession after death of his father Saun Singh in the suit property. The copy of the sale deed executed by Uttam son of Saun son of Kahna dated 14.6.1973 is also on the record. This Court has found on the basis of above referred documents that there is no document on the record indicating partition of the suit property between the parties. On this point, few of authorities have been referred by the defendants, now appellants. Reference was made to law laid down in Raj Mal v. Smt.Bhagti and others reported in 1988 Civil Court Cases page 163 that when some co-sharers have already raised their houses on some portion of the land, a similar use by other co-sharers cannot be denied to them. Reference was also made to law laid down in Hussan Lal v. Krishna Devi reported in 1996(1) Civil Court Cases page 384, another judgment of our own High Court on this point. Reference was also made to law laid down in Jai Pal v. Bharta and another reported in 2007(2) Civil Court Cases page 172, that private partition is possible even in the absence of an order passed by authorities concerned. Reference was also made to law laid down in Radhesyam Agrawal v. Narendrapal Singh reported in 1987 Civil Court Cases page 245 another judgment of Madhya Pradesh High Court by the defendants. On the other hand, the plaintiff referred to law laid down in Milkha Singh v. Makhan Singh reported in 2009(1) SLJ page 205 that private partition if not reflected in revenue record, it cannot be held that land is partitioned. Reference was also made to law laid down in Pritam Singh and others v. Chanan Singh and others reported in 2003 (1) Civil Court Cases page 426 that proceedings of partition Civil Revision No.2129 of 2011(O&M) -5- have been initiated and defendant would not suffer any prejudice because it would soon be clear which of the co- sharers would be entitled to occupy and possess which portion of the land. Reference was also made to law laid down in Rukmani and others v. H.N.Thirumalai Chettiar reported in AIR 1985 Madras 283 that a co-sharer cannot be allowed to cause prejudice to the other co-sharers by putting up a substantial construction during the pendency of partition proceedings. Reference was also made to law laid down in Vidya Matri Mandir (Regd.) v. Rajinder Nath and another reported in 1991 Civil Court Cases 722, a judgment of Allahabad High Court that a co-sharer can be restrained from making construction over joint property if he is doing so to the detriment of the interest of the other co- sharers.” Hence, a careful perusal of the aforementioned orders passed by learned Courts below shows that orders have been passed by learned Courts below after considering all the aspects of the matter. Present petitioners cannot be permitted to raise further construction over the land in dispute so as to change its nature during pendency of the partition proceedings. It has been observed by learned appellate Court in the impugned order that even if defendants have raised small construction, which is already completed, they cannot raise further construction thereupon. 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 or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court 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 on the face of proceedings such as when it Civil Revision No.2129 of 2011(O&M) -6- is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 6.4.2011 (Ram Chand Gupta) meenu Judge