Civil Revision No.4181 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4181 of 2009 Date of decision: 13.08.2010 Prem Singh and others ....Petitioners Versus Puran Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. R.M. Singh, Advocate, for the petitioners. Mr. Y.D. Kaushik, Advocate, for respondent No.5. **** VINOD K. SHARMA, J.(ORAL) This is plaintiffs' revision against the order dated 6.8.2007, passed by the learned trial Court as affirmed by the learned appellate Court by order dated 2.5.2009, dismissing the application moved by the petitioners under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The plaintiffs filed a suit for declaration, that the plaintiffs are joint owners in possession to the extent of 1/3rd share of their own and land measuring 12 ½ marlas out of the share of defendant No.1, within the abadi of village Chhainsa, Tehsil Ballabgarh, District Faridabad. The pleaded case of the petitioners was, that defendant No.1 with the consent of his sons i.e. defendants No.2 to 4 entered into a compromise on 17.8.1991, vide which defendant No.1 voluntarily gave land measuring 12 ½ marlas as per the details given in para No.1 of the plaint. In lieu thereof defendant No.1 took land measuring 1 kanal out of Civil Revision No.4181 of 2009 -2- their plot No.3, killa No.3, situated at village Hassanpur, Tehsil Palwal, District Faridabad. This land was received by plaintiffs' father Karan Singh in pursuance to the decision of panchayat dated 2.8.1991. The case of the plaintiffs further was, that after taking possession of the land measuring 1 kanal from the plaintiffs, defendant No.1 constructed his house, over the said plot and put the plaintiffs in actual physical possession of the land measuring 12 ½ marlas. The entries regarding this panchnama/exchange were not incorporated in the revenue record, therefore, the parties were still shown to be co-owners to the extent of 1/3rd share. The case of the plaintiffs was, that defendants by taking advantage of the entries in the revenue record, were taking steps to alienate the suit land wrongly and illegally. Therefore, the suit was filed for declaration that the entries appearing in the name of defendant No.1 to be null and void with a consequential relief of injunction restraining the defendants from alienating the suit land to anybody else. The plaintiff/petitioners also moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for interim injunction. On receipt of notice, the suit as well as the application for injunction was contested by controverting the assertions made in the plaint. The stand of the defendant/respondents was, that the alleged panchnama dated 17.8.1991, was never acted upon. It was the case of the defendant/respondents, that plaintiff No.1 by taking wrongful advantage of the trust of defendant No.1 got several pieces of land mutated in his name. The case of the defendants was, that plaintiffs did not make any attempt to abide by the panchnama and further the Civil Revision No.4181 of 2009 -3- plaintiffs did not perform their part of the obligation. It was also pleaded, that panchnama was not signed by all the parties. It was also the case of the defendants, that the plaintiff/petitioners had earlier filed a suit for possession on 16.7.1994 titled “Prem Singh and others Vs. Phul Singh” in the civil court, Palwal, wherein relief of possession was claimed. The suit was dismissed for want of prosecution. It was also the case of the defendants, that the plaintiffs failed to get the revenue record corrected by handing over three bighas of land in village Chhainsa, Tehsil Ballabgarh, in terms of panchnama dated 17.8.1991, therefore, they were estopped from claiming right in 12 ½ marlas of land in dispute. The case of the defendants was, that panchnama was a waste paper, which gives no right to the plaintiffs to maintain the suit. The learned trial Court dismissed the application by recording, that the plaintiff/petitioners had no prima facie case at this stage in view of the record showing that the plaintiffs were co-sharers to the extent of 1/3rd share in the land mentioned in para No.1 of the plaint. The learned trial Court came to the conclusion, that as presumption of truth is attached to the jamabandi and unless and until it was proved that panchnama dated 17.8.1991, was acted upon, there is no rebuttal to the revenue record. The learned trial Court also held, that the plaintiffs had not disclosed about the suit for possession filed by them, therefore, they were not entitled to discretionary relief of injunction and dismissed the application. The plaintiff/petitioners preferred an appeal. The learned lower appellate Court agreed with the learned trial Civil Revision No.4181 of 2009 -4- Court, that the revenue record showed, that the parties were shown as co- owners to the extent of 1/3rd share. That the plaintiff/petitioners except for placing on record the agreement dated 17.8.1991 had not placed anything else on record. The learned lower appellate Court held that unless and until it was shown, that the agreement was acted upon, no reliance could be placed on it. The learned lower appellate Court came to the conclusion, that the agreement dated 17.8.1991 was not acted upon, as one kanal of land, which was to be given in lieu of 12 ½ marlas of land, the possession was never handed over to the defendants, as they were already in possession of the plot. The learned lower appellate Court by placing reliance on the following judgments held that the plaintiff/petitioners were not entitled to injunction: - “1. S.P. Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs and others, JT 1993 (6) S.C. 331; 2. Gujarat Bottling Co. Ltd. and others Vs. Coca Cola Co. and others, AIR 1995 SC 2372; 3. Hamza Haji Vs. State of Kerala, 2006 (7) SCC 416; 4. Rama Hosiery Factory Delhi and others Vs. J.K. Synthetics Ltd., AIR 1974 Delhi 207; 5. T.A. George and another Vs. DDA and others, AIR 1995 Delhi 131 and 6. Jai Karan Sharma Vs. Ram Kumar, 2009 (1) RCR (Civil) 546”. The learned counsel for the petitioners challenged the impugned orders on the ground, that exchange dated 17.8.1991 was not Civil Revision No.4181 of 2009 -5- in dispute. Even before this Court the respondents, had to concede that one kanal land given in lieu of 12 ½ marlas of land, which was in dispute, was in possession of the respondents exclusively and ownership of the said plot was also entered in their name. Therefore, it was proved, that the respondents have taken benefit under settlement dated 17.8.1991 In case some part of compromise was not acted upon by the parties, then it was open to the parties to enforce the right, but the defendant/respondents cannot interfere, in the possession of the plaintiffs, as they have taken benefit of the area transferred to them in lieu of 12 ½ marlas of land. There can be no dispute with the proposition, that a co-owner cannot seek injunction against other co-owner nor the fact that a person not coming to the Court with clean hands is not entitled to discretionary relief. A suit for possession had no relevance with the matter in dispute, specially when the said suit was dismissed for non-prosecution and no decision was taken thereon. The non-mentioning of the previous suit, therefore, could not be held to be concealment of facts to deny discretionary relief, nor the principle that co-owner cannot seek injunction against another co-owner was applicable to the facts of the present case. In view of the admission by the defendant/respondents that in lieu of land in dispute, the area falling to their share stood transferred in their name, which was already in their possession. Mere fact that physical possession was not given by the plaintiff/petitioners in pursuance to the settlement is of no consequence, in view of the admission by the defendant/respondents, that they were in Civil Revision No.4181 of 2009 -6- possession of the plot and that the ownership of the said plot stood entered in their name exclusively i.e. in exclusion to the plaintiffs. The Hon'ble Supreme Court in Narendra Kante Vs. Anuradha Kante and others, 2010(1) Civil Court Cases 366, has been pleased to lay down as under: - “17. In support of his aforesaid submission, Mr. Ranjit Kumar firstly relied on the decision of the Three Judge Bench in Kale vs. Dy. Director of Consolidation 1976 (3) SCC 119 in which the question of registration of a family arrangement had fallen for consideration. Their Lordships held that a family arrangement may be even oral in which case no registration is necessary. Registration would be necessary only if the terms of the family arrangement are reduced into writing but there also a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere Memorandum prepared after the family arrangement had already been made, either for the purpose of recording or for information of the Court for making necessary mutation. In such a case, the Memorandum itself does not create or extinguish any right in the immovable properties and, therefore, neither does it fall within the mischief of Section 17(2) of the Registration Act nor is it compulsorily registrable. Their Lordships went on further to conclude that a document, which was no more than a memorandum of what had been agreed to, did not require registration. 22. As far as the second question is concerned, a Deed of Family Settlement seeking to partition joint family properties cannot be Civil Revision No.4181 of 2009 -7- relied upon unless signed by all the co- sharers. In the instant case, admittedly, the Respondent No.8, Sau. Pratibha, was not a signatory to the Deed of Settlement dated 8th February, 1967, although, she is the daughter of Bapu Saheb Kante by his first wife. As was held in the case of M.N. Aryamurthy (supra), under the Hindu Law if a Family Arrangement is not accepted unanimously, it fails to become a binding precedent on the co-sharers. Both Mr. Vivek Tankha and Mr. Anoop G. Chaudhary, learned Senior Advocates, brought this point to our notice to indicate that all the co-sharers had not consented to the Deed of Family Settlement which could not, therefore, be relied upon. The argument would have had force had it not been for the fact that acting upon the said Settlement, the appellants had also executed sale deeds in respect of the suit property. Having done so, it would not be open to the appellants to now contend that the Deed of Family Settlement was invalid.” In view of the law laid down by the Hon'ble Supreme Court, once it was proved that defendant/respondents had taken benefit of settlement dated 17.8.1991, though partly, they were estopped from challenging the validity of the exchange. In view of the admitted position referred to above, it was proved on record, that the plaintiff/petitioners had a prima facie case, and that balance of convenience was also in favour of the plaintiff/petitioners and that they were likely to suffer irreparable loss and injury, if injunction was not granted to the plaintiff/petitioners. For the reasons stated above, this revision petition is allowed, Civil Revision No.4181 of 2009 -8- impugned orders are set aside, and the application moved by the plaintiff/petitioners under Order 39 Rules 1 and 2 of the Code of Civil Procedure is allowed, but with no order as to costs. It is made clear, that nothing stated above be taken to be an expression of opinion on the merits of the case, as the learned trial Court is to adjudicate the dispute between the parties after the parties are allowed to lead evidence. (Vinod K. Sharma) Judge August 13, 2010 R.S.