Civil Revision No.8154 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.8154 of 2010 (O&M) Date of Decision: January 19, 2011 Kamaljit Singh .....Petitioner v. Amritpal Singh and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.M.L.Saggar, Sr.Advocate with Mr.J.S.Dhaliwal, Advocate for the petitioner. Mr.S.S.Rangi, Advocate and Mr.Jaganhar Singh, Advocate for the respondents. ... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 17.11.2010, passed by learned appellate Court in appeal filed by the respondent-defendants under Order 43 Rule 1(r) of the Code of Civil Procedure (hereinafter to be referred as the `Code') against order dated 4.1.2010, vide which application filed by the petitioner-plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code was allowed. I have heard learned counsel for the parties and have gone through the whole record carefully including the orders passed by learned trial Court and learned appellate Court. Brief facts relevant for the decision of present revision petition are that suit for permanent injunction was filed by the present petitioner- plaintiff restraining respondent-defendants from alienating, transferring, mortgaging or creating any charge qua any specific portion of the property in dispute and also from changing the nature of the property in dispute. It has been averred that plaintiff alongwith defendants are co- sharers in the suit property, as fully detailed in the head-note of the plaint, Civil Revision No.8154 of 2010 (O&M) -2- and the same is in joint possession of the parties as joint owners and the same was never partitioned by the order of any competent authority or even orally between the parties. It is also averred that plaintiff filed a petition under Section 111 of the Punjab Land Revenue Act, which is pending before Assistant Collector Ist Grade, Ludhiana. It is further averred that defendants in order to achieve illegal gain wants to alienate the suit property abutting main road, which is more valuable and hence, the same would be detrimental to the interest of the plaintiff, in case the defendants succeed in alienating the specific portion of the said land and to deliver its possession to subsequent vendee. On the similar facts, an application under Order 39 Rules 1 and 2 of the Code for ad interim injunction was also filed by the petitioner- plaintiff. Defendants appeared and filed written statement as well as reply to the stay application resisting the same on the ground that plaintiff has not come to the Court with clean hands and has suppressed the material facts from the Court. It has been pleaded that father of plaintiff and defendant nos.1 and 2 and father of defendant no.3 were joint owners in joint possession of the property in dispute and that they had partitioned the entire joint property as a result of oral family settlement, which was later on reduced into writing and the parties came into their separate exclusive possession at the spot. It is further pleaded that Mohan Singh sold his 1/3rd share in the land adjoining the canal to Janta Estate and Housing through registered sale deed and put them in exclusive possession of his ½ share and the Janta Estate and Housing- purchaser from Mohan Singh carried out a colony over the same and sold the plots to various persons, who raised boundary walls over the same and even some of them constructed their houses. It is further contended that plaintiff and defendant no.2 after the death of their father orally partitioned the respective share in the whole estate inherited by them from their father, which was later on reduced into writing. It is also contended that copies of memorandum of family settlement/partition entered between Lal Singh and Mohan Singh and between plaintiff and defendant nos.1 and 2 are in their possession and as per the same parties are in exclusive possession of the respective share at the spot. It is pleaded that share of plaintiff and defendant no.1 abuts the Civil Revision No.8154 of 2010 (O&M) -3- canal side and share of the defendants falls on the backside of the shares of plaintiff and defendant no.1 and one side of the share of plaintiff is adjoining the Janta Estate and Housing and one side of the share of Amritpal Singh is adjoining the link road from village Gill-2 near Canal Bridge of Village Lohara and the land at village Gill has fallen to the share of defendant no.2 and the land at village Brahmin Majra on the Jaspal Banger side of Canal fallen to the share of plaintiff and defendant no.1. It is also contended that even in column of cultivation in the jamabandi Mohan Singh and Lal Singh have been shown in possession separately as per the oral family settlement. Hence, it is contended that present suit has been filed simply to usurp the share of defendant no.1, who is living abroad in order to take forcible and illegal possession of the land fallen in the share of defendant no.1, which is being looked after and cultivated by defendant no.2, as his attorney. It is denied that the suit land is in joint ownership and joint possession of the parties. Learned trial Court by allowing application for ad interim injunction filed by present petitioner-plaintiff restrained respondent- defendants from alienating, transferring, mortgaging or creating any charge qua any specific portion, in any manner and defendants were further restrained from delivering the possession of any part of the suit land of specific khasra/portion, in any manner, whatsoever, without partition of the suit land by metes and bounds, during pendency of the suit, primarily on the plea that application for partition filed by petitioner-plaintiff before Assistant Collector, 1st Grade, Ludhiana, is still pending and the property has not been partitioned by metes and bounds. In appeal filed by respondent-defendants, learned appellate Court reversed the said order by allowing the appeal by observing as under:- “8. Perusal of the judicial file shows that the plaintiff has withdrawn his claim against defendant no.3, vide statement dated 17.12.2009 suffered by ld. counsel for the plaintiff. The suit property was admittedly owned by Lal Singh and Mohan Singh sons of Teja Singh in equal shares. As per the jamabandi for the year 2006-2007 Mohan Singh has sold his 1/2 share in the land to M/s. Janta Estate and Housing through registered sale deed. The plaintiff never objected to sale of 1/2 share of Civil Revision No.8154 of 2010 (O&M) -4- the land by co-sharer Mohan Singh and he has even withdrawn his claim against other i.e. co-sharer Komal Singh son of Mohan Singh. The appellants have relied upon a Panchayati partition deed dated 5.11.2009 and their counsel has argued that the said land was partitioned and each party was put into possession of his respective share, and thereafter Mohan Singh was allowed to sell his 1/2 share to M/s Janta Estate and Housing. Although the genuineness of the Panchayati partition deed dated 5.11.2009 to be proved by the appellants by leading cogent evidence, yet the partition deed, prima facie shows that the parties are in possession of their respective sharers. Hon'ble High Court has held in the case titled Jai Karan Sharma vs. Ram Kumar 2009(1) RCR (Civil) 546 that a co-sharer of land in exclusive possession of certain portion of land can raise construction in the land, which is in his exclusive possession and the other co-owner cannot seek injunction restraining the co-owner from raising construction. Hon'ble High Court has further held in case titled Ved Parkash Vs. Sunder and others 2009(1) Civil. C.C. 114 that a co-sharer can sell a specific portion of the undivided property and to claim possession of specific portion it has to be proved that the vendor was in possession of specific portion. In the instant case, prima facie it appears that the suit property has been substantially shared between the parties and some of the property which had fallen in the share of Mohan Singh has been sold by him to M/s Janta Estate and Housing, which is evident from the jamabandi for the year 2006-2007. Therefore, prima facie case is made out in favour of the appellants and balance of convenience is also titled in their favour and they shall suffer irreparable loss and injury if they are restrained from enjoying the property which has fallen into their share as per Panchayati partition deed dated 5.11.2009. 9. In view of my above discussion, the appeal is allowed and the order dated 4.1.2010 passed by Ld. Civil Judge (Junior Division) Ludhiana is set aside. However any alienation Civil Revision No.8154 of 2010 (O&M) -5- of their respective shares, out of the suit property, by the appellants, shall be subject to partition proceedings, if any, pending between the parties. The parties are directed to appear before the ld. Trial court on 6.12.2010 for further proceedings. The lower court file be returned alongwith copy of this order for compliance. File of appeal be consigned to the record room.” Law is well settled that at the stage of granting ad interim injunction, the Court has to take into consideration the basic elements regarding existence of a prima facie case, balance of convenience and the fact as to whether an irreparable loss would be caused to plaintiff, if ad interim injunction order is not granted and Court is also to take into consideration the conduct of the parties since grant of injunction is an equitable relief. Respondent-defendants have placed on record a panchayati partition/compromise, Annexure P3, vide which joint property was partitioned between present petitioner-Kamaljit Singh and the respondents, i.e., all the three brothers, sons of Lal Singh. It has been mentioned in the said panchyati partition/compromise that they have partitioned the same by mutual consent and they are in possession of the specific portions, as per the said partition. Even the present petitioner-plaintiff has placed reliance upon partition agreement, Annexure P6, which is dated 25.9.1987, vide which the property including the property in dispute was partitioned between all the three brothers. It has been contended by learned counsel for the respondent- defendants that earlier partition dated 25.9.1987, Annexure P6, was reflected in the later partition dated 5.11.2009, Annexure P3. Petitioner-plaintiff has not come to the Court with clean hands as the said facts were not pleaded by him. Hence, in view of these facts, it cannot be said that any illegality or material irregularity has been committed by learned appellate Court in allowing the appeal filed by respondent- defendants. Sufficient reasons have been given by learned appellate Court, as reproduced above, while passing the impugned judgment. Law is well that that a co-owner in an exclusive possession of specific portion of undivided property to the extent of his share cannot be Civil Revision No.8154 of 2010 (O&M) -6- restrained from enjoying the said property. It has been prima facie shown that property had fallen to the respective share of the brothers, as per family partition. There are two partition-deeds, i.e., one Annexure P6, dated 25.9.1987 and another is Annexure P3, i.e., 5.11.2009. Moreover learned appellate Court has also ordered that any alienation of respective share of the suit property by respondent-defendants shall be subject to partition proceedings, if any pending between the parties. Law is well settled 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 is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. Hence, in view of the peculiar facts and circumstances of this case, as discussed above, I am of the view that no illegality or material irregularity has been committed by learned appellate Court in passing the impugned order or grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. The present revision petition is hereby dismissed, being devoid of any merit. However, it is made clear that nothing observed herein shall be construed to have any bearing on the decision of this case by learned trial Court on merit. 19.1.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.